On Monday, the Court relisted in five new cases.  ­Ochoa v. Holder, 10-920, and Gor v. Holder, 10-940, seek to resolve a circuit split on whether federal courts of appeals have jurisdiction to review denials by the Board of Immigration Appeals of motions to reopen removal proceedings sua sponte "” a question the Court expressly reserved last Term in Kucana v. Holder, 08-911.  In Martel v. Clair, 10-1265, the State of California seeks review of the Ninth Circuit's grant of habeas relief to a capital defendant; the Ninth Circuit held that a district court abused its discretion in denying the writ where a federal habeas petitioner had objected to the performance of his appointed federal habeas counsel and demanded substitute counsel.  The Court also relisted for the first time in Greineder v. Massachusetts, 10-8835, which presents the Confrontation Clause at issue in Bullcoming v. New Mexico, 09-10876, argued on March 2; because the Court is expected to issue all merits opinions by next Monday (including in Bullcoming), it might dispose of Greineder in its June 27 orders list.

The final new relist is Vogt v. North Carolina, 10-8800, which presents an ex post facto challenge to the application of a North Carolina sex offender law requiring satellite-based monitoring to persons convicted prior to that statute's passage.  The Court also relisted in a related oldie-but-goodie:  the SG's cert. petition in United States v. Juvenile Male, 09-940, which presents the question whether application of the registration and notification provisions of the federal Sex Offender Registration and Notification Act (SORNA) to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment violates the Ex Post Facto Clause.  Avid Court-watchers may recall that Juvenile Male has had a circuitous path:  in June 2010, the Supreme Court certified a mootness-related question to the Montana Supreme Court, and the case only recently returned to One First Street's active docket after the Montana court's May 17, 2011 opinion.  It's possible the Court relisted this week in Juvenile Male to consider vacating the Ninth Circuit's judgment under United States v. Munsingwear; I discuss the issue in more detail here.

The Court relisted for a second time in Knox v. Service Employees International Union Local 1000, 10-1121, involving two First Amendment challenges to a labor union's special assessment to fund political activity, and Russell v. California, 10-10201, a capital case, both discussed in last week's post.  And the Court relisted for a sixth time in both Messerschmidt v. Millender, 10-704, and Cavazos v. Smith, 10-1115.  We should be seeing an opinion in either or both of these cases very soon.

The Court also relisted in Zuress v. Donley, 10-374 (for the fourth time), Wetherill v. McHugh, 10-638 (for the third time), and Witt v. United States, 10-885 (for the second time), all of which present questions involving whether "dual-status technicians" who perform civilian roles within military departments may sue the government for employment discrimination under Title VII, notwithstanding the Court's holding in Feres v. United States, 340 U.S. 135 (1950), barring suits by members of the military for injuries that arise out of, or are in the course of activity incident to, military service; Witt asks the Court to overrule Feres; the cases are discussed here.  (Goldstein, Howe & Russell is counsel of record for petitioner in Zuress.)  The Court needs to choose which case to grant; the cases may also have been relisted so they can be considered together with Ligon v. LaHood, 10-1185, and Jones v. United States, 10-1330, both of which present the arguably related issue of the exclusivity of the federal-sector jurisdictional provision of Title VII, 42 U.S.C. § 2000e-1, and both of which are on for the June 23 Conference.

The Court also listed two cases for this Thursday's Conference after extended holds:  Philip Morris USA Inc v. Jackson, 10-735 (which I discussed here in March), and Beer v. United States, 09-1395, have been released from holds, likely in wake of yesterday's decision in Wal-Mart v. Dukes, 10-277.  The Court also appears to have released holds on a number of petitions that it had held routinely pending its recently issued opinions in Davis v. United States, 09-11328, and Smith v. Bayer, 09-1205.

Finally, the Court denied cert. in two cases it relisted for the first time last week: the capital case Spencer v. Alabama, 10-9085, in which the Court had previously requested the record, and King v. United States, 10-10489, which I speculated last week had been relisted for consideration with Hampton v. United States, 10-10554.  The Court denied cert. in both King and Hampton this week.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Thanks to summer associate Kiran Bhat for compiling and drafting this update.

 


Title: Ochoa v. Holder (relisted after the 6/16 Conference)
Docket: 10-920
Issue(s): (1) Whether the Eighth Circuit erred by holding that federal courts are categorically incompetent to review a Board of Immigration Appeals decision denying a motion to reopen removal proceedings sua sponte, even where that decision applies a legal standard, on the ground that such decisions are “committed to agency discretion by law”; and (2) whether the Eighth Circuit erred by disregarding the BIA's stated grounds for its decision, in conflict with SEC v. Chenery Corp. and the decisions of other circuits.

 

Certiorari stage documents:


Title: Gor v. Holder (relisted after the 6/16 Conference)
Docket: 10-940
Issue(s): (1) Whether the court of appeals erred in holding that it did not have jurisdiction to review a denial of sua sponte reopening even though the petitioner raised constitutional and legal questions that the majority of circuits have treated as reviewable; and (2) whether the court of appeals erred in holding, after the Court's decision in Kucana v. Holder (2010), that it had no jurisdiction to review sua sponte reopening determinations even though such determinations are governed, in relevant part, by the same statutory and regulatory framework as other reopening determinations.

 

Certiorari stage documents:


Title: Vogt v. North Carolina (relisted after the 6/16 Conference)
Docket: 10-8800
Issue(s): Whether the North Carolina General Assembly intended to further punish sex offenders by enacting satellite-based monitoring as a mandatory condition of probation, parole, post-release supervision, and lifetime supervision, thereby violating the Ex Post Facto Clause by its retroactive application.

 

Certiorari stage documents:

 


Title: Martel  v. Clair (relisted after the 6/16 Conference)
Docket: 10-1265
Issue(s): Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer when he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

Certiorari stage documents:


Title: Knox v. Service Employees International Union Local 1000 (Relisted after the 6/9 and 6/16 Conferences)

Docket: 10-1121
Issue(s): (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction?  (2)  May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?

 

Certiorari stage documents:


Title: Russell  v. California (Relisted after the 6/9 and 6/16 Conferences)
Docket: 10-8800
Issue(s): Whether application of a state hearsay rule to deny a capital defendant's request to present mitigating evidence at the penalty phase of a capital trial violates the Eighth and Fourteenth Amendments.

 

Certiorari stage documents:


Title: Messerschmidt v. Millender (relisted after the 5/12, 5/19, 5/26, 6/2, 6/9 and 6/16  Conferences)

Docket: 10-704

Issue(s): (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her?  (2)  Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?

 

Certiorari stage documents:


Title: Cavazos v. Smith (Relisted after the 5/12, 5/19, 5/26, 6/2, 6/9 and 6/16 Conferences)
Docket: 10-1115
Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

 

Certiorari stage documents:


Title: Zuress v. Donley (Relisted after the 3/2, 4/26, 5/31 and 6/16 Conferences) [Goldstein, Howe & Russell represents the petitioner in this case, which is listed without regard to its likelihood of being granted.]
Docket: 10-374
Issue(s): In what circumstances are dual-status technicians, who perform civilian roles within military departments, protected by federal statutes prohibiting employment discrimination?

 

Certiorari stage documents:


Title: Wetherill  v. McHugh (Relisted after the 4/26, 5/31 and 6/16 Conferences)
Docket: 10-638
Issue(s): Whether the claims of a dual-status National Guard technician alleging employment discrimination under Title VII of the Civil Rights Act of 1964 are jurisdictionally barred by the doctrine of Feres v. United States and its progeny?

 

Certiorari stage documents:


Title: Witt v. United States (Relisted after the 5/31 and 6/16 Conferences)
Docket: 10-885
Issue(s): Should the Feres doctrine be overruled, in whole or in part, on the ground that the Federal Tort Claims Act should not be construed to include a non-textual exception barring claims for injuries arising out of activity incident to service or, if there is such an exception, it does not bar a claim for injury to a service member caused by medical malpractice at a military hospital when the service member was on leave when admitted to the hospital?

 

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Re-list (and hold) watch, SCOTUSblog (Jun. 21, 2011, 2:40 PM), http://www.scotusblog.com/2011/06/re-list-and-hold-watch-10/