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maxwellyjordan · 5 years

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Relist Watch

John Elwood reviews Monday’s relists.

With the recent reduction in trusted sources for Supreme Court news, we untrusted news sources must do our best to fill the gap. So even though I have an argument approaching, I will once again try to rise to the occasion. Happily for me, it’s a light week for relists.

First the old business. The court finally resolved that tangle of 56 Armed Career Criminal Act cases pretty much the way I expected. Otherwise, from last week’s installment, we had one denial, one grant and one relative rarity: a summary reversal that didn’t involve qualified immunity, habeas corpus or the death penalty. Although there were those who thought it wasn’t summary enough.

With that, we’re ready for the new business. That’ll be quick this week, because there is only one new relist. Near as I can tell, it involves a lawsuit between the director of the U.S. Patent and Trademark Office and Kanye West’s latest persona. Although in the interest of “accuracy,” I should note that I just now made that up. Iancu v. NantKwest Inc., 18-801, involves an oddly named immunotherapy company’s lawsuit challenging a decision by the U.S. Patent and Trademark Office finding its cancer-treatment patent application obvious and therefore unpatentable. NantKwest lost the suit, and the PTO sought attorneys’ fees under 35 U.S.C. § 145, which requires an applicant to pay “[a]ll the expenses of the proceedings.” A divided panel of the U.S. Court of Appeals for the Federal Circuit held that NantKwest was on the hook for “the attorney’s fees the [PTO] incurred to defend applicant’s appeal,” but the court, on its own motion, reheard the case en banc and reversed course. The majority held by a 7-4 vote that courts presumptively assess expenses under the “American rule,” which requires litigants to pay their own lawyers’ fees, and that Congress did not act explicitly enough in Section 145 to displace that presumption. The federal government now seeks review of that decision, arguing that the ordinary meaning of “expenses” includes attorneys’ fees. As a non-germane aside, NantKwest is represented by the law firm where Andrei Iancu served as managing partner until his appointment to the PTO in 2017.

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

New Relists

Iancu v. NantKwest Inc., 18-801

Issue: Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.

(relisted after the February 22 conference)

Returning Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4, January 11, January 18, February 15 and February 22 conferences)

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4, January 11, January 18, February 15 and February 22 conferences)

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.