John Elwood reviews Monday’s relisted and held cases.

The world will have to wait another day before the summer’s most highly  anticipated event (besides, of course, the big Poison/Mötley Crüe reunion tour).  But the Justices opened the floodgates Monday on the relist (and hold) front, wishing a happy birthday to their eighth-most-senior colleague (that’s the glass-half-full perspective) while they worked to clear their desks before the bell rings and they leave for summer vacation.

Four of Monday’s ten cert. grants came from the rolls of relisted cases.

As has been widely reported, the first grant (and, um, summary reversal) came in the once-relisted American Tradition Partnership Inc. v. Bullock, 11-1179, in which a divided Montana Supreme Court attempted to distinguish Citizens United.  In a brisk, 184-word per curiam opinion, the Court concluded that Montana’s arguments were either “already rejected in Citizens United” or failed “to meaningfully distinguish that case.”  Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, voting to deny cert. in light of the majority’s unprincipled willingness to split infinitives while refusing to reconsider Citizens United or its application to “the history and political landscape in Montana.”

The petitioner in Comcast Corp. v. Behrend, 11-864, likewise asked for summary reversal, but after six relists, got . . . an outright grant (which, in fairness, it also had requested).  That beats the heck out of having your case repeatedly relisted before an outright denial (see, e.g., the Gitmo cases from earlier this month), but as I’ve noted well past the point where boredom sets in, a large number of relists more often signals an impending dissent from denial or summary reversal than a grant.  I suspect there was an opinion of some sort in circulation before the necessary votes were forthcoming.  In the course of a half-dozen relists, the Court did reformulate the question slightly.

The Court also granted cert. in the once-relisted Sebelius v. Auburn Regional Medical Center, 11-1231, which involves equitable tolling of the 180-day statutory time limit for a Medicare provider to file an administrative appeal with the Provider Reimbursement Review Board.  And the Court granted cert. in Henderson v. United States, 11-9307, which was also relisted for the first time last week and involves whether an error is “plain” for purposes of Federal Rule of Criminal Procedure 52(b) if law that was unsettled at the time of a trial court’s decision becomes clear by the time of an appeal.

It was not all rainbows and unicorns for previously relisted petitioners, as the Court denied cert. in the twice-relisted duo of Mount Soledad Memorial Ass’n v. Trunk, 11-998, and United States v. Trunk, 11-1115, involving an Establishment Clause challenge to a public war memorial featuring a large cross; Justice Alito penned this solo statement respecting the denial of certiorari, agreeing with the Court’s disposition because the case was in an interlocutory posture.

The Court also relisted three (and a half?) new prospects.  First up, the Court relisted for the first time the two related petitions in Retractable Technologies, Inc. v. Becton, Dickinson & Co., 11-1154, and Becton, Dickinson & Co. v. Retractable Technologies, Inc., 11-1278.  Retractable’s petition seeks review of a decision by the Federal Circuit construing the term “body” in a patent claim, and presents the questions (1) whether a court may depart from plain and ordinary meaning of a term in a patent claim based on language in the patent specification; and (2) whether claim construction, including underlying factual issues, is a purely legal question subject to de novo review on appeal.  Becton filed a conditional cross-petition offering three additional “questions” as alternate grounds for affirmance if the Court grants Retractable’s petition, highlighting questions of claim construction on which Retractable prevailed in the Federal Circuit by taking positions that, in Becton’s view, can’t be reconciled with its arguments for granting cert.

The Court also relisted for the first time since receiving the SG’s invited brief in Corboy v. Louie, 11-336, which involves claims by real property owners in Hawaii for an exemption from real property taxes equal to the exemption granted (only) to native Hawaiian homestead lessees under the Hawaiian Homes Commission Act.  The petition presents the questions whether petitioners have standing to seek a refund of their own taxes (the SG says no), and whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.  So nothing controversial there.  The Solicitor General recommends the Court deny cert., but the same was true of three of Monday’s grants.

The last new relist came in Williams v. Wetzel, 11-7882, a capital habeas case from the Third Circuit.  In support of his underlying claims of ineffective assistance of counsel, Mr. Williams alleges a split about whether Harrington v. Richter permits a federal habeas court to deny relief on a ground other than those given by a state post-conviction court (when that court does give reasons), and seeks a GVR in light of Cullen v. Pinholster on the ground that the Third Circuit considered evidence presented for the first time in federal court.

Monday’s order list also offered up a smorgasbord of new holds.

Perhaps the most interesting thing on the hold front is a group of (17-odd) petitions listed for the June 21 Conference and now technically relisted for June 28.  It appears these petitions were all previously being held for Williams v. Illinois (some were held before that for Bullcoming v. New Mexico), and were listed for June 21 as the Court, as a routine matter, considered the held cases in light of the Court’s June 18 decision in Williams.  Why the Court pushed them off to June 28 is something of a mystery to me; is it possible even the Court isn’t sure how to dispose of the petitions given the fractured result in Williams?

The Court also appears to be holding Tennant v. Jefferson County Commission, 11-1184, the West Virginia redistricting case on direct appeal, in which the Court granted a stay of the lower court decision back in January.  As Lyle has explained, a three-judge district court in Tennant invalidated the state’s redistricting plan, concluding it violated the one-person, one-vote principle.  It’s not obvious why the Court would be holding the case in the usual sense, as I’m not aware of another case presenting the same issues; the delay may signal that the Court is working on a summary disposition (I’d guess an affirmance) rather than a plenary note of probable jurisdiction, reflecting a slight difference in how the Court treats mandatory appeals and petitions for cert.  But it’s hard to say anything too definitive from reading the papers and staring at the docket.  (Disclaimer:  The appellee in Tennant is represented by the Supreme Court Litigation Clinic at the University of Virginia School of Law, of which I am an adjunct faculty member, and I have worked on the case.)

In more routine hold action, Davis v. United States, 11-9422, discussed last week as a companion case to Henderson, is likely now being held for the latter.  And the Court appears to have accepted the SG’s recommendation to hold Doan v. United States, 11-8643, for Chaidez v. United States, 11-820, as both involve the question whether Padilla v. Kentucky applies to persons whose convictions became final before that decision was issued.

Last week I complained about the murkiness of the reason for the hold in Rhodes v. Tucker, 11-9820.  It looks like I was right that they were waiting for the rest of the record to come in.  It arrived on June 19, and now the case has been relisted for September’s Long Conference.

With that, only my musings on this Thursday’s wrap-up Conference stand between you and an entire summer free of this column’s special brew of bad jokes and ill-informed speculation.  Until then, we return you to your regularly scheduled vigil for the health care decisions.


Corboy v. Louie (relisted after the 6/21 Conference)

Docket:  11-336

Issue(s): (1) Whether petitioners have standing to seek a refund of their own taxes; and (2) whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.

Certiorari stage documents

Retractable Techs., Inc. v. Becton, Dickinson & Co. (relisted after the 6/21 Conference)

Docket:  11-1154

Issue(s):  (1) Whether the Court should abandon the well-established rule that a patent’s claims must be interpreted in light of the description of the invention in the patent’s specification in favor of a rule of interpretation divorced from the specification, based upon the incorrect premise that the claim term “body” in this case has a clear and unambiguous meaning that can be understood without reference to the patent’s specification; and (2) whether the Court should abandon the de novo standard of appellate review for issues of patent claim construction, even though petitioners urged de novo review before the Federal Circuit and the claim construction ruling in this case did not rest on any factual findings that could receive deference.

Certiorari stage documents

 Becton, Dickinson & Co. v. Retractable Techs., Inc. (relisted after the 6/21 Conference)

Docket:  11-1278 (Conditional Cross-Petition with 11-1154)

Issue(s):  (1) Whether the Federal Circuit’s construction of the “lodging” limitation should be reversed because, at Retractable’s urging, the Federal Circuit deviated from the term’s clear meaning on far weaker grounds than the court relied on to construe the ambiguous term “body”; (2) whether the Federal Circuit’s construction of the “retainer member” limitation should be reversed because, at Retractable’s urging, the Federal Circuit deviated from the term’s clear meaning on far weaker grounds than the court relied on to construe the ambiguous term “body”; and (3) whether the Federal Circuit’s holding that the asserted claims cover devices that work by cutting should be reversed because, at Retractable’s urging, the Federal Circuit disregarded a clear disclaimer of claim scope on far weaker grounds than the court relied on to construe the ambiguous term “body.”

Certiorari stage documents

 Williams v. Wetzel (relisted after the 6/21 Conference)

Docket:  11-7882

Issue(s):  (1) Does Harrington v. Richter, which interpreted 28 U.S.C. § 2254(d)(1) as requiring federal habeas courts to determine what arguments or theories could have supported the state court judgment when the state court ruling is unexplained, also apply when the state court has explained the basis for its ruling, a question that has divided the Courts of Appeals?; (2) Should this Court grant certiorari, vacate, and remand for reconsideration in light of Cullen v. Pinholster – which was decided after the Third Circuit issued its opinion — where the Third Circuit assessed reasonableness under § 2254(d)(1) in the light of evidence that was presented for the first time in federal court?

Certiorari stage documents

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (Jun. 27, 2012, 10:39 AM), http://www.scotusblog.com/2012/06/relist-and-hold-watch-24/