Re-list the clock
By John Elwood
on April 29, 2021
at 4:19 pm
The “Relist Watch” column reviews certification applications that the Supreme Court has “re-listed” for its upcoming conference. A short explanation of the relists can be found here.
Lots of movement on the Relist front this week. The court granted a review of re-listed cases involving the first two amendments to the US Constitution, overturned an appeals court ruling on a re-listed habeas case for the second time in a month, and denied permission to prosecute “original Jurisdiction “to be filed between two states that had been re-listed ten times, citing Justice Samuel Alito (along with Justice Clarence Thomas) who argued that the court had no discretion not to hear the case.
While the court ditched four re-listed cases this week, it just added one new list. Ericsson Inc v TCL Communication Technology Holdings Limited, 20-1130, comes in the patent context but raises two general procedural questions. Ericsson owned an important patent in the age of smartphones that controlled the ability of downloaded apps to access sensitive phone data and hardware (e.g. by turning on the microphone and eavesdropping). Ericsson sued TCL because its phones infringed its patents. TCL requested a summary judgment on the grounds that the Ericsson patent was invalid under 35 USC § 101 because it claimed an abstract idea. The district court denied TCL’s summary judgment, the case was brought to trial, the jury found TCL had deliberately infringed the patent and awarded Ericsson $ 110 million in damages. At the trial, TCL did not provide evidence to support its “abstract idea” theory of Section 101, and did not withdraw Section 101 for evidence or as required under Federal Code of Civil Procedure 50 (a). Nor was it argued that the Section 101 claims were invalid after the judgment when TCL re-filed Rule 50 (b).
On appeal, the US Federal Circuit Court of Appeals ruled with a 2: 1 vote that Ericsson’s patent was invalid under Section 101. The court excused TCL’s failure to provide Section 101 in its judgments as a matter of law on two grounds. First, the Federal Circuit concluded that TCL’s denial of summary judgment was essentially the occurrence of a summary judgment of Ericsson’s patent eligibility in the absence of any disputed material facts. Second, the court concluded that there was discretion to hear on appeal issues that had been waived and they chose to pursue them here as the matter was explained below. Judge Pauline Newman disagreed, arguing that the majority had “overturned federal rules and sound practice on civil and appeals processes.”
In his petition to the Supreme Court, Ericsson alleges that the Federal Circuit has violated two basic rules of civil procedure clarified in Ortiz against Jordan. First, the parties cannot normally “appeal a decision rejecting a summary judgment after a full trial on the merits”. Second, the courts are “powerless” to overturn a jury’s judgment on appeal unless the party requesting a review has petitioned the court for a final Rule 50 judgment. Ericsson argues that there are circuit splits on both counts. TCL argues that “there is no break in the circuit when a district court denial of a summary judgment is of the type that effectively gives a summary judgment to the non-mover.” We should have a better idea on Monday whether the court is interested in granting a review.
That’s all for this week. Stay safe!
Ericsson Inc v TCL Communication Technology Holdings Limited, 20-1130
Problems: (1) Is there an exception for summary judgment decisions that relate solely to “legal issues”, notwithstanding the customary rule that a pre-trial rejection of a summary judgment application cannot be reviewed on appeal? and (2) whether an order rejecting a summary judgment may be reviewed in the discretion of the appeals court regardless of failure by either party to obtain final judgment on those grounds Federal Code of Procedure 50.
(resumed after the conference on April 23rd)
Chipotle Mexican Grill versus Scott, 20-257
Problem: Whether a district court may consider factors other than the existence of a single material question of law or fact common to a group of workers when assessing whether workers are “similar” for the purposes of the collective bargaining provision of the Fair Labor Standards Act.
(Performed again after the conferences of December 4, December 11, January 8, January 15 and January 22) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]
Dobbs v Jackson Women’s Health Organization, 19-1392
Problems: (1) whether all prohibitions on dropping out of elections before viability are unconstitutional; (2) whether the validity of a viability law that protects the health of women, the dignity of unborn children, and the integrity of the medical profession and society, according to the standard “Planned Parenthood v. Casey’s “inappropriate burden” or according to the health of whole women v Hellerstedt’s weighing of benefits and burdens; and (3) whether abortion providers have the authority of a third party to invalidate a law that protects women’s health from the dangers of late-term abortions.
(postponed before October 9, October 16, October 30, November 6, November 13, November 20, December 4 and December 11; again after January 8, January 15, January 15 recorded; February 22, 19, February 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences)
Harris v. Maryland, 20-101
problem: Whether, if the delay in giving notice actually impaired the defendant’s ability to defend himself or herself, the due process clause requires the defendant to demonstrate that the delay was caused by an improper motive on the part of the prosecutor, or that the Courts weigh the defendant’s particular prejudice against the defendant for particular reasons (or lack thereof) for the delay.
(Performed again after the conferences of January 8, January 15, January 22, February 19, February 26, March 5, March 19, March 26, April 1, April 16 and April 23 )
Johnson v. Precythe, 20-287
Problems: (1) Whether Bucklew v Precythe made a categorical rule whereby a state can obtain dismissal of a claim to the method of execution after the Eighth Amendment by giving a reason for rejecting the alternative method of execution rejected by the plaintiff, which is abstractly legitimate Regardless of whether the plausible has plausibly alleged that the state put forward in relation to the facts is illegitimate or sufficient; and (2) whether the U.S. Court of Appeals alternatively summarizes the 8th Circle’s refusal to allow Ernest Johnson to amend his complaint to suggest a previously used alternative method of warrant enforcement following the decision of the Bucklew Supreme Court Reversal.
(listed again after the conferences on January 8, January 15, January 22, February 19, February 26, March 5 and March 19; distributed after the supplementary briefing for the conference on April 30)
Woodard v USA, 20-6387
problem: Whether, as many courts have found, continuing a prosecution after a long and demonstrably adverse delay in filing criminal charges is against due process, even when the prosecution does not intend to gain tactical advantage or harass when law enforcement cannot explain the delay sufficiently to justify the extent of the defendant’s prejudice.
(Performed again after the conferences of March 19, March 26, April 1, April 16 and April 23)
Allen v. Wells Fargo & Co., 20-866
Problems: (1) Whether under Fifth third Bancorp against DudenhoefferEmployee equity fund trustees are effectively immune to due diligence if inside information is not made public. and (2) whether the scope of Dudenhoeffer goes beyond prudent claims and applies to claims of loyalty against ESOP trustees.
(performed again after the conferences of April 1st, 16th and 23rd)
Doe versus USA, 20-559
Problems: (1) Ob Feres versus United States, which found that federal tort law largely precludes “on duty” injury claims, was wrongly ruled and should be overridden; and (2) alternatively, whether Feres should be restricted so as not to exclude unauthorized acts by soldiers injured by violating military regulations, during recreational activities, or while attending a service academy.
(resumed after the April 16-23 conferences)