Putting aside Monday’s fireworks on the health care front, this week’s order list was relatively quiet. The Court did grant cert. in the survivor benefits case Astrue v. Capato, 11-159, relisted after the November 4 Conference and discussed last week. And after taking an extra week to mull over a late-filed supplemental brief, the Court doled out a GVR in the once-relisted Branch Banking and Trust v. Gordon, 11-282, in light of the Court’s decision last Term in AT&T Mobility Corp. v. Concepcion, 09-893.
The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error. The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference. In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography.
The Court also relisted for the first time in Dallas v. L.J., 11-109, a state-on-top petition from the Fourth Circuit in which Maryland seeks relief from a twenty-two-year-old consent decree that governs substantial aspects of the state’s foster care system. The state presents two questions: (1) whether the district court erred in denying relief under Federal Rule of Civil Procedure 60(b)(5) on the ground that an underlying decision was not “dead wrong,” despite “sensitive federalism concerns” and changes in underlying law since the entry of the consent decree; and (2) whether a federal court may enter and enforce a wide-ranging injunction based on a single state-plan element of the Adoption Assistance and Child Welfare Act of 1980.
The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date. As noted last week, it seems all but certain the Court will grant cert. in one of these cases.
The other relists are all repeat-player, state-on-top habeas cases alleging that courts of appeals gave insufficient deference to state-court decisions: Wetzel v. Lambert, 11-38 (Third Circuit, fourth relist), Cash v. Maxwell, 10-1548 (Ninth Circuit, fifth relist), and Hardy v. Cross, 11-74 (Seventh Circuit, sixth relist). After last week’s per curiam in Bobby v. Dixon, 10-1540, and the prior week’s in Cavazos v. Smith, 10-1115, further summary action (or perhaps a dissent from the denial of cert.) may be in the works.
On the hold front, it appears the Court is holding Thomas More Law Center v. Obama, 11-117, and Liberty University v. Geithner, 11-438, for the other health care cases granted on Monday. As Lyle mentioned here, Liberty University addresses a provision of the Affordable Care Act not at issue in the other cases, which requires large private-sector employers to assure adequate health coverage for their full-time workers.
In other housekeeping matters, the Court called for the record in Floyd v. Cain, 11-5987, originally set for the November 22 Conference. Floyd appears to involve another Brady claim from the beleaguered New Orleans District Attorney’s Office, as in Smith v. Cain, 10-8145, argued on November 8. It may give them another opportunity to consider whether to confess error. The Court also appears to have released several routine holds, GVRing in Stovall v. Miller, 10-851, and McEwen v. Thompson, 11-305, in light of last week’s decision in Greene v. Fisher, 10-637.
If a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. 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.
Fisher v. U.S. District Court for the Northern District of Texas (relisted after the 11/10 Conference)
Issue(s): Under 18 U.S.C. § 3771(d)(3), a crime victim seeking to enforce a right under the Crime Victims’ Rights Act may petition the court of appeals for a writ of mandamus. Does this provision entitle crime victims to ordinary appellate review of their claims instead of only limited mandamus review for clear and indisputable error?
Dallas v. L.J. (relisted after the 11/10 Conference)
Issue(s): (1) Whether a court misapplies the flexible standard demanded by Rule 60(b)(5) when it subordinates “sensitive federalism concerns” implicated by a long-running institutional-reform decree to the court’s insistence that its previous decisions must be “dead wrong” before a state may obtain relief based on changes in the governing law; and (2) whether a federal court lacks power to enter and enforce a wide-ranging injunction based on a single state-plan element of the Adoption Assistance and Child Welfare Act of 1980, which makes federal funding conditional on a requirement that the state plan include certain elements to “gain the approval of” the Secretary of the federal Department of Health and Human Services.
Davis v. United States (relisted after the 11/10 Conference)
Issue: Whether the Fair Sentencing Act of 2010 applies in a sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.
Wetzel v. Lambert (relisted after the 10/28, 11/4, and 11/10 Conferences)
Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?
Certiorari stage documents:
Hardy v. Cross (relisted after the 9/26, 10/7, 10/14, 10/28, 11/4, and 11/10 Conferences)
Issue(s): Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.
Certiorari stage documents:
Cash v. Maxwell (relisted after the 9/26, 10/7, 10/14, 11/4, and 11/10 Conferences)
Issue(s): (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.
Certiorari stage documents: