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Relist Watch

John Elwood reviews Monday’s relists.

We at Relist Watch tend to prefer the obscure to the obvious – we like the shadow docket shadowy. So we are not going to start this week’s edition talking about such subjects as the three new cases the Supreme Court agreed to review from among last week’s relists. No, we are laser-focused on the truly important stories of the day. Our lead story this week is that Justice Sonia Sotomayor managed to get out an opinion respecting denial in Townes v. Alabama by repeatedly rescheduling the case before it ever reached conference, presumably to give her the time to study the case and write the opinion. That’s the first time I can remember that happening; justices traditionally have obtained the time to write such opinions by relisting a case. It’ll be interesting to see if that becomes a trend.

We have a baker’s dozen of new relists this week. But I was able to cut and paste the respondent’s name for most of them. Why? It’s a long story — but at least it’s dull.

In 2015, the Federal Communications Commission, by a 3-2 vote, stopped classifying broadband internet-access service as an information service and reclassified it as a telecommunications service subject to the common-carrier requirements of Title II of the Communications Act. Reclassification subjected broadband providers to a variety of rules collectively known as “net neutrality” rules, including prohibitions on blocking or throttling content, applications or services or engaging in “paid prioritization,” and imposing a “general conduct standard” against interfering with “edge providers” to be applied on a case-by-case basis. In 2016, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the FCC’s rules, and then denied rehearing en banc over the dissents of Judge Janice Rodgers Brown and then-Judge Brett Kavanaugh. The membership of the FCC changed after the 2016 presidential election, and in 2018, the new Republican majority went back to classifying broadband internet-access service as an “information service” and thereby eliminating the “net neutrality” regulations. Challenges to the 2018 order are now before the D.C. Circuit. [Disclosure: I filed amicus briefs in the D.C. Circuit supporting challengers to the 2015 order, and supporting the 2018 order.]

So now we have a cluster of seven consecutively numbered relisted petitions all involving challenges to the Obama administration’s “net neutrality” rules. All but one of the petitioners agree with the FCC that the 2018 order mooted the challenge to the 2015 order. One individual petitioner (Daniel Berninger) and two groups of intervenors below [Disclosure: both represented by Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities] argue that the challenges are not moot. Berninger says the Supreme Court should take the cases for plenary review, while the intervenors say it should just deny cert. The rest of the petitioners and the FCC say that because the challengers’ ability to obtain appellate review of the D.C. Circuit decision was frustrated by the FCC’s adoption of new rules, the Supreme Court should vacate the D.C. Circuit’s decision upholding the rules – known to nerds as Munsingwear vacatur. The FCC proposes a split-the-difference alternative that is a classic Office of the Solicitor General move: Vacate the judgment and send it back to the D.C. Circuit to consider in the first instance the effect of the 2018 order on this litigation. That may be appealing to the court given that it may be harder to form a majority with now-Justice Kavanaugh recused because of his prior participation. Just two last items about these cases that interested me. First, the solicitor general’s omnibus brief responded to so many petitions that it couldn’t fit all the captions on the cover – something like that happened to me this week. Second, Berninger managed to make his case the lowest-numbered and thus the lead case (in whose name any opinion will be issued) by seeking the same 90-day extension as all the other petitioners, and then filing his petition on day 89. Remember that move the next time you find yourself in a cast-of-thousands case.

Having spent my time and energy on the first seven cases, I’m going to be fairly summary for the last six;

Smith v. Berryhill, 17-1606, presents a question only a lawyer could love: whether a decision by the Social Security Administration’s “Appeals Council” — the body that hears disability benefits claimants’ appeals from administrative law judge decisions — that the claimant’s appeal was untimely is a “final decision” subject to judicial review. The government has acquiesced in the grant and confessed error, so it looks like Sotomayor, as circuit justice for the U.S. Court of Appeals for the 6th Circuit, likely will be picking some lucky lawyer to defend the judgment below.

City of Escondido, California, v. Emmons, 17-1660, another qualified immunity case, in which the petitioner’s counsel argues that the U.S. Court of Appeals for the 9th Circuit is “continu[ing] to defy decades of clearly established jurisprudence on qualified immunity.”

Flowers v. Mississippi, 17-9572: This (capital case) Relist Watch alumnus from 2016 is back, presenting the question whether a prosecutor’s history of adjudicated purposeful race discrimination may be dismissed as irrelevant when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors.

Mont v. United States, 17-8995, involves the truly obscure question of whether a period of supervised release for one offense is tolled during a period of pretrial confinement (that, upon conviction, would be credited to a defendant’s term of imprisonment for another offense). The government acknowledges “some disagreement” among the courts of appeals on that question, but argues “that disagreement may does not warrant intervention at this time.” We’ll see if the justices agree.

Stuart v. Alabama, 17-1676: A woman convicted of criminally negligent homicide for driving under the influence challenges the admission at her trial of written reports regarding blood-alcohol tests, arguing that the admission was clearly contrary to Bullcoming v. New Mexico. She seeks summary reversal.

Lance v. Sellers, 17-1382, a capital case involving ineffective-assistance claims and allegations of diminished mental capacity and dementia.

That’s all for this week. Thanks to Ben Moss compiling the relists.

New Relists

Berninger v. Federal Communications Commission, 17-498

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission’s assumption of gatekeeper power over new methods of communication, “in the most important place [] for the exchange of views[,] … the ‘vast democratic forums of the Internet,’” violates the First Amendment; (2) whether the radical reinterpretation of the Communications Act of 1934 by the FCC is entitled to deference under Chevron U.S.A. v. Natural Resources Defense Counsel, Inc., and, if so, whether that deference violates Article I, Section 1 of the Constitution; and (3) whether the FCC has statutory authority to promulgate the Open Internet Order, vastly expanding regulation of the internet, in light of the policy enacted by Congress “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services [defined as services that provide access to the Internet], unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2).

(relisted after the October 26 conference)

AT&T, Inc v. Federal Communications Commission, 17-499

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission has statutory authority to reclassify fixed and mobile broadband internet-access service as a “telecommunications service” subject to common-carrier regulation; and (2) whether the FCC has statutory authority to reclassify mobile broadband internet-access service as a “commercial mobile service” subject to common-carrier regulation.

(relisted after the October 26 conference)

American Cable Association v. Federal Communications Commission, 17-500

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission has statutory authority under the Telecommunications Act of 1996 to impose common-carrier regulation on internet-access service; and (2) whether the FCC’s order below was arbitrary, capricious, an abuse of discretion, or undertaken without observance of the procedures required by law.

(relisted after the October 26 conference)

CTIA-The Wireless Association, et al. v. Federal Communications Commission, 17-501

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission unlawfully reclassified broadband internet-access service as a “telecommunications service” under 47 U.S.C. § 153; and (2) whether the FCC unlawfully reclassified mobile broadband internet-access service as a “commercial mobile service” under 47 U.S.C. § 332.

(relisted after the October 26 conference)

NCTA – The Internet and Television Association v. Federal Communications Commission, 17-502

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether it was arbitrary and capricious for the Federal Communications Commission to reverse long-standing policy without identifying and substantiating any actual changed circumstances or accounting for broadband providers’ massive reliance interests; (2) whether the FCC violated the Administrative Procedure Act by failing to give adequate notice of key aspects of the final order; and (3) whether the FCC exceeded its statutory authorization by reclassifying broadband as a “telecommunications service.”

TechFreedom, et al. v. Federal Communications Commission, 17-503

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission’s order imposing common-carrier status upon broadband providers constitutes a major rule of vast “economic and political significance,” requiring Congress to “speak clearly” if it wishes to delegate the matter to an agency’s interpretive discretion, when the order will affect (i) every American internet service provider, which collectively invest over $78 billion in network investments annually as of 2014; (ii) every internet content provider, an industry that currently includes the five largest companies in the United States by market capitalization; and (iii) every internet consumer, currently totaling over 275 million Americans; and, if so, whether Congress expressly authorized the FCC to issue the major rule, when (i) Congress enacted Telecommunications Act of 1996, upon which the FCC relies, with the express purpose of ensuring “the Internet and other interactive computer services,” remain “unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); and (ii) the FCC concedes that “the Communications Act did not clearly resolve the issue of how broadband should be classified”; and (2) whether the FCC’s reinterpretation of the term “public switched network” to include IP-enabled services is, by virtue of implicating additional services, a minor or major question.

(relisted after the October 26 conference)

United States Telecom Association, et al. v. Federal Communications Commission, 17-504

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue: Whether the Federal Communications Commission lacked the clear congressional authorization required to assert plenary authority over a large and growing segment of the economy by imposing public-utility, common-carrier obligations on broadband internet-access service.

(relisted after the October 26 conference)

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26 conference)

Smith v. Berryhill, 17-1606

Issue: Whether the decision of the Appeals Council—the administrative body that hears a claimant’s appeal of an adverse decision of an administrative law judge regarding a disability benefit claim—to reject a disability claim on the ground that the claimant’s appeal was untimely is a “final decision” subject to judicial review under Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g) .

(relisted after the October 26 conference)

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26 conference)

Stuart v. Alabama, 17-1676

Issue: Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood-alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.

(relisted after the October 26 conference)

Flowers v. Mississippi, 17-9572

Issue: Whether a prosecutor’s history of adjudicated purposeful race discrimination may be dismissed as irrelevant when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors.

(relisted after the October 26 conference)

Mont v. United States, 17-8995

Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

(relisted after the October 26 conference)

Returning Relists

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, and November 2 conferences)

Jones v. Oklahoma, 17-6943

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(relisted after the September 24, October 5, October 12 and October 26 conferences)

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(relisted after the September 24, October 5, October 12 and October 26 conferences)

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(relisted after the September 24, October 5, October 12 and October 26 conferences)

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(relisted after the September 24, October 5, October 12 and October 26 conferences)

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(relisted after the September 24, October 5, October 12 and October 26 conferences)

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

(relisted after the October 5, October 12 and October 26 conferences)

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12 and October 26 conferences)

Gray v. O’Rourke, 17-1679

Issue: Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veteran Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual.

(relisted after the October 12 and October 26 conferences)

Blue Water Navy Vietnam Veterans Association, Inc. v. O’Rourke, 17-1693

Issues: (1) Whether judicial review of an interpretative Department of Veteran Affairs’ regulation under the Administrative Procedures Act should be foreclosed under 38 U.S.C. § 502 when the Veterans Judicial Reform Act provides the sole avenue for review of the Secretary’s decisions; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s decision creates a conflict with the U.S. Court of Appeals for the District of Columbia’s decision in Blue Water Navy Vietnam Veterans Association Inc. and Military-Veterans Advocacy Inc. v. McDonald.

(relisted after the October 12 and October 26 conferences)

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12 and October 26 conferences)

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