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.

With just a few weeks left before the Supreme Court’s summer recess, and with only the October and November argument sittings filled, the court has switched into high gear. It granted five of last week’s six new relists on Monday.

The pace is only increasing. There are nine newly relisted cases this week, so I’m going to be even more summary than last time in describing them.

Reservists’ pay during national emergencies

Feliciano v. Department of Transportation, Nordby v. Social Security Administration, and Flynn v. Department of State all concern when civilian federal employees who are also armed forces reservists are called to perform military duty. In the wake of the heavy use of reservists during the wars in Afghanistan, Iraq, and related military actions, Congress enacted a “differential pay bill” which sought to ensure that reservists whose military pay was less than their civilian pay continued earning at the higher civilian level during deployment. The relevant provision applies to all service “pursuant to a call or order to active duty” under a number of specifically enumerated provisions of law, as well as under “any other provision of law during a war or during a national emergency declared by the President or Congress.” The U.S. Court of Appeals for the Federal Circuit held that the catchall provision does not apply even during a declared national emergency if the person’s own duty “was unconnected to the emergency at hand.”

In their petitions, Nick Feliciano, Evan Nordby, and Charles Flynn – supported by the congressional sponsors of the legislation, veteran advocacy groups, and a group of 20 states and the District of Columbia – say that the Federal Circuit’s reading is atextual and shortchanges veterans who can’t plan for their families during their deployments when they’re unsure whether their service will be counted.

[Disclosure: I am among the counsel representing Feliciano and Flynn.]

Holocaust survivors sue Hungary

Republic of Hungary v. Simon, which is on its second trip to the Supreme Court (and is making its second appearance in Relist Watch), as well as Friedman v. Republic of Hungary, arise from efforts of the families of Holocaust survivors to recover from Hungary and its national railway for the expropriation of victims’ property. Both cases 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.” Hungary seeks review, claiming that the U.S. Court of Appeals for the D.C. Circuit and the U.S. Court of Appeals for the 2nd Circuit have reached conflicting decisions about the scope of that exception. Meanwhile, Zehava Friedman and a group of plaintiffs argue that the same panel of the D.C. Circuit erred in rejecting certain of its arguments that Hungary had violated the international law of expropriation in various ways.

Debtor’s tax under the Bankruptcy Code

Section 544 of the Bankruptcy Code permits a bankruptcy trustee to avoid any transfer of the debtor’s property that occurred before the bankruptcy petition that would be voidable “under applicable law” outside bankruptcy by an unsecured creditor of the estate. The applicable law may be state law. Another provision of the code abrogates the sovereign immunity of all governmental units “to the extent set forth in this section with respect to” various sections of the Bankruptcy Code, including Section 544.

In United States v. Miller, the U.S. Court of Appeals for the 10th Circuit held that a bankruptcy trustee could avoid the debtor resort company’s pre-petition federal tax payment – significantly, to pay the personal tax debts of individual officers, rather than the corporate debtor itself – even though no ordinary creditor could have obtained relief outside of bankruptcy because they would be prevented by sovereign immunity and other defenses available to the government (such as that the appropriations clause prohibits repayment). The U.S. Courts of Appeals for the 4th Circuit and the 9th Circuit have reached the same conclusion. But the U.S. Court of Appeals for the 7th Circuit disagrees, holding that trustees cannot avoid federal tax payments under such circumstances. The solicitor general petitioned for review on the basis of that disagreement.

In his opposition, David Miller says further percolation is warranted. And deploying an argument the solicitor general frequently uses to great effect in briefs in opposition, Miller argues that the outlier 7th Circuit should be given the opportunity to reconsider its views and bring the circuits back into alignment.

Study of environmental impacts of crude oil production

The Seven County Infrastructure Coalition wants to build a new 88-mile common carrier rail line that would link an isolated part of Utah to the national rail network. It sought and received the Surface Transportation Board’s approval to do so. Opponents of the project challenged that approval in the D.C. Circuit. As relevant here, they argued that the board should have done more to study the effects of extracting and producing the main cargo that the rail line would carry — crude oil – even though the Surface Transportation Board doesn’t regulate oil production. They argued that the agency was required to consider those effects in performing the required environmental analysis under the National Environmental Policy Act.

The U.S. Court of Appeals for the D.C. Circuit agreed, holding that “[t]he Board … cannot avoid its responsibility under NEPA to identify and describe the environmental effects of increased oil drilling and refining on the ground that it lacks authority to prevent, control, or mitigate those developments.”

In Seven County Infrastructure Coalition v. Eagle County, Colorado, the coalition, supported by seven “friend of the court” briefs filed by Indian tribes, the state of Utah, and various interest groups, argues that NEPA does not require an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. It also claims that the courts of appeals disagree on whether NEPA requires consideration of those effects.

In its opposition, the government argues that there is no such disagreement, that it recently issued clarifying regulations obviating the need for Supreme Court review, and that in any event the D.C. Circuit found other flaws in the agency’s reasoning invalidating the board’s approval.

Retirement benefits under the ADA

The Americans with Disabilities Act provides that employers may not “discriminate against a qualified individual on the basis of disability in regard to … terms, conditions, and privileges of employment.” Looking to the statutory definition of “qualified individual” as someone who “can perform the essential functions of the employment position that such individual holds or desires,” many courts of appeals have held that the ADA does not apply to former employees, who neither hold nor desire the position of employment. Other courts hold that the ADA does apply to former employees.

Karyn D. Stanley was a firefighter in Sanford, Florida, until she was forced by Parkinson’s Disease to take disability retirement. She claims that the retirement benefits for disabled retirees explicitly treats them worse than others. The U.S. Court of Appeals for the 11th Circuit held that as a former employee, Stanley lacked a cause of action under the ADA. In Stanley v. City of Sanford, Florida, Stanley challenges that conclusion, noting that the ADA incorporates by reference “[t]he powers, remedies, and procedures” of Title VII of the Civil Rights Act of 1964, and that Title VII has been held to apply to former employees.

In its opposition, the City of Sanford argues that Stanley was not actually subject to discrimination because she was denied the relevant benefit because she lacked sufficient years of service to qualify for it, and indeed received greater benefits than non-disabled retirees with comparable service.

Damages for trademark infringement

Last up is Dewberry Group, Inc. v. Dewberry Engineers, Inc., which stems from a long-running trademark dispute between two companies about the use of the shared surname — Dewberry — in marketing real-estate-development services. Following a prior settlement, the Dewberry Group rebranded its business and provided new marketing materials to its (separately incorporated) affiliates, which used those materials to market commercial properties to prospective tenants. Dewberry Engineers sued, asserting trademark claims under the Lanham Act. But its suit named Dewberry Group, not the affiliates, as a defendant, and the parties litigated only the liability of Dewberry Group itself.

The district court nonetheless ordered Dewberry Group to disgorge $43 million in profits earned by the affiliates, which are separately incorporated entities. The trial court concluded that Dewberry Group and its affiliates could be “treated as a single corporate entity when calculating the revenues and profits” of the infringing activity.

A divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed. While ordinarily a court would need to determine that circumstances justified “pierc[ing] the corporate veil” to justify imposing damages for another corporation that was not before the court, here it said the court had authority under the Lanham Act to “weig[h] the equities of the dispute” and fashion remedies accordingly.

In dissent, Judge Marvin Quattlebaum argued that a plaintiff should have had to either join the other affiliates as parties or make the showing necessary to pierce the corporate veil. But he said he “kn[ew] of no law that allows courts, in assessing the profits of a defendant, to disregard those options and simply add the revenues from nonparties to a defendant’s revenues for purposes of evaluating the defendant’s profits.”

In its petition, Dewberry Group renews its argument that an award of the “defendant’s profits” under the Lanham Act cannot include an order for the defendant to disgorge profits earned by separately incorporated affiliates that are not parties to the suit, and it argues that circuits disagree on the issue.

Opposing review, Dewberry Engineers denies that there is any such disagreement, and it argues that the district court had equitable discretion to increase the disgorgement order beyond the $0 sum that Dewberry Group’s tax returns indicated it earned in light of evidence that Dewberry Group engaged in non-arm’s-length transactions with its affiliates.

We’ll know more soon. Until next time!

New Relists

United States v. Miller, 23-824
Issue: Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b) when no actual creditor could have obtained relief under the applicable state fraudulent-transfer law outside of bankruptcy.
(relisted after the June 13 conference)

Feliciano v. Department of Transportation, 23-861
Issue: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
(relisted after the June 13 conference)

Nordby v. Social Security Administration, 23-866
Issue: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
(relisted after the June 13 conference)

Republic of Hungary v. Simon, 23-867
Issues: (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the Foreign Sovereign Immunities Act applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act.
(relisted after the June 13 conference)

Flynn v. Department of State, 23-868
Issue: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.
(relisted after the June 13 conference)

Dewberry Group, Inc. v. Dewberry Engineers, Inc., 23-900
Issue: Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.
(relisted after the June 13 conference)

Seven County Infrastructure Coalition v. Eagle County, Colorado, 23-975
Issue: Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.
(relisted after the June 13 conference)

Stanley v. City of Sanford, Florida, 23-997
Issue: Whether, under the Americans with Disabilities Act, a former employee — who was qualified to perform her job and who earned post-employment benefits while employed — loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job.
(relisted after the June 13 conference)

Friedman v. Republic of Hungary, 23-1075
Issues: (1) Whether Hungary and its national railway violated the international law of expropriation by their seizure of stateless persons’ property; and (2) whether Hungary’s violation of the Treaty of Trianon by expropriation of Jews’ property was a taking in violation of international law under the Foreign Sovereign Immunities Act.
(relisted after the June 13 conference)

Returning Relists

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences) 

L.W. v. Skrmetti, 23-466
Issues: (1) Whether Tennessee’s Senate Bill 1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the 14th Amendment’s equal protection clause; and (2) whether Senate Bill 1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the 14th Amendment’s due process clause.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

United States v. Skrmetti, 23-477
Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Jane Doe 1 v. Kentucky ex rel. Coleman, Attorney General, 23-492
Issues: (1) Whether, under the 14th Amendment’s due process clause, Kentucky Revised Statutes Section 311.372(2), which bans medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex,” should be subjected to heightened scrutiny because it burdens parents’ right to direct the medical treatment of their children; (2) whether, under the 14th Amendment’s equal protection clause, § 311.372(2) should be subjected to heightened scrutiny because it classifies on the basis of sex and transgender status; and (3) whether petitioners are likely to show that § 311.372(2) does not satisfy heightened scrutiny.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Harrel v. Raoul, 23-877
Issues: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes; (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes; and (3) whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Herrera v. Raoul, 23-878
Issues: (1) Whether semiautomatic rifles and standard handgun and rifle magazines do not count as “Arms” within the ordinary meaning of the Second Amendment’s plain text; and (2) whether there is a broad historical tradition of states banning protected arms and standard magazines from law-abiding citizens’ homes.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Barnett v. Raoul, 23-879
Issue: Whether Illinois’ sweeping ban on common and long-lawful arms violates the Second Amendment.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

National Association for Gun Rights v. City of Naperville, Illinois, 23-880
Issues: (1) Whether the state of Illinois’ ban of certain handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorically unconstitutional; (2) whether the “in common use” test announced in Heller is hopelessly circular and therefore unworkable; and (3) whether the government can ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding-era regulation.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Langley v. Kelly, 23-944
Issues: (1) Whether the state of Illinois’ absolute ban of certain commonly owned semi-automatic handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorially unconstitutional; (2) whether the state of Illinois’ absolute ban of all commonly owned semi-automatic handgun magazines over 15 rounds is constitutional in light of the holding in Heller that handgun bans are categorially unconstitutional; and (3) whether the government can ban the sale, purchase, possession, and carriage of certain commonly owned semi-automatic rifles, pistols, shotguns, and standard-capacity firearm magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by Heller and New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Gun Owners of America, Inc. v. Raoul, 23-1010
Issue: Whether Illinois’ categorical ban on millions of the most commonly owned firearms and ammunition magazines in the nation, including the AR-15 rifle, violates the Second Amendment.
(relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)

Escobar v. Texas, 23-934
Issues: (1) Whether due process of law requires reversal, where a capital conviction is so infected with errors that the state no longer seeks to defend it; (2) whether the Texas Court of Criminal Appeals erred in holding there was no due process violation because there is “no reasonable likelihood” that the prosecution’s use of admittedly false, misleading, and unreliable DNA evidence to secure petitioner’s capital conviction could have affected any juror’s judgment.
(relisted after the May 30 conference)

 Broadnax v. Texas, 23-248
Issue: Whether the Texas Court of Criminal Appeals’ decision that James Broadnax failed to establish a prima facie equal protection claim conflicts with this court’s decision in Batson v. Kentucky.
(rescheduled before the Jan. 5, May 9, May 16, May 23 and May 30 conferences; relisted after the June 6 and June 13 conferences)