John Elwood reviews Monday’s relisted and held cases.

Greetings,  sports fans, and welcome to Relist (and Hold) Watch – Year-End Edition™, bringing you a holiday-infused mélange of fleeting insight and strained humor.

We begin, as always, with the fate of last week’s relists.  The big – and old – news is the Court’s decision to grant review in two once-relisted cases, United States v. Windsor, 12-307 (the Defense of Marriage Act (“DOMA”) case), and Hollingsworth v. Perry, 12-144 (the California same-sex marriage case).  The remaining eight of the ten related relists have all but certainly become holds for one or both of those cases.  The cases on ice include seven involving constitutional challenges to DOMA (Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill, 12-13, Department of Health and Human Services v. Massachusetts, 12-15, Office of Personnel Management v. Golinski, 12-16, Windsor v. United States, 12-63, Massachusetts v. Department of Health and Human Services, 12-97, Pedersen v. Office of Personnel Management, 12-231, and Office of Personnel Management v. Pedersen, 12-302) and one involving a constitutional challenge to an Arizona law that denies health care benefits to state employees’ domestic partners but not spouses or dependents (Brewer v. Diaz, 12-23).  In a less satisfying state of limbo is Bond v. United States, 12-158, involving Congress’s authority to enact legislation to implement a treaty, which appears to be back for a fifth relist.  I imagine we’ll be seeing an opinion respecting the denial of cert. early in the new year.

It’s hard to tell the relists from the holds this week, because the clerk’s office hasn’t yet updated the docket – probably because the next Conference isn’t until January 4.  But the Justices appear to have slipped two new relists into your correspondent’s electronic stocking.  The Court may have relisted in Kentucky v. King, 12-140, in which the police, while pursuing a fleeing suspect, entered an apartment after smelling burning marijuana and hearing from their position in the hallway outside the apartment sounds indicating the destruction of evidence therein.  If the facts sound vaguely familiar, it’s because King is back for a second dip in the cert. pool after the Court held in OT ’10 that warrantless entry to prevent the destruction of evidence is allowed under the exigent circumstances rule when the police do not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment.  On remand, the Kentucky Supreme Court held that the evidence should have been suppressed, and the state again sought cert.  Kentucky’s petition asks (1) whether the hot pursuit exception to the warrant requirement is contingent on a subjective determination of pursuit, and (2) what constitutes a serious offense for purposes of the exigent circumstances rule.  Alternatively, King may be on hold for Missouri v. McNeely, 11-1425, which also involves the exigent circumstances rule, albeit in the context of police taking nonconsensual and warrantless blood samples from a drunk driver.

The Court may also have relisted in City of New York v. Southerland, 12-215, in which the Big Apple seeks review of the denial of qualified immunity to a case worker from the City’s Administration for Children’s Services, who removed children from their father’s home on the belief that they were being abused.  A unanimous panel of the Second Circuit vacated in part a district court’s grant of summary judgment to the City, allowing Fourth and Fourteenth Amendment claims under Section 1983 to move forward alleging unlawful search (of the home), seizure (of children), and violation of due process.  The Justices’ interest in the case may have been piqued by the five dissenting votes from the Second Circuit’s denial of rehearing en banc; Chief Judge Jacobs, who is sort of the Diarmuid O’Scannlain of the Second Circuit in his ability to get the Justices’ attention, said in dissent that he “would shake [the case worker’s] hand” for the actions giving rise to the suit.

On the (likely) hold front, the Court appears to be holding Kwong v. Holder, 12-150, for Descamps v. United States, 11-9540, consistent with the assertion in Mr. Kwong’s reply brief (disputed by the Solicitor General) that the Court’s disposition of Descamps could resolve the case in his favor.  Among other things, Kwong presents the question whether a state-court abstract of judgment qualifies as a conclusive record sufficient to determine the nature of a prior conviction under Shepard v. United States.  The Court is likely holding CGI Technologies and Solutions, Inc. v. Rose, 12-240, for U.S. Airways, Inc. v. McCutchen, 11-1285; both involve the meaning of “appropriate equitable relief” under Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA).  Finally, Merck & Co. v. Louisiana Wholesale Drug Company, 12-245, and Upsher-Smith Laboratories, Inc. v. Louisiana Wholesale Drug Company, 12-265, are almost certainly routine holds for FTC v. Watson Pharmaceuticals, Inc., 12-416; each involves the validity of “reverse-payment agreements” in settlements of patent litigation.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various ways, is among the counsel to the respondents in both Merck & Co. and Upsher-Smith.]

And with that, Relist Watch – Vintage (?) 2012 has drawn to a close.  You may now return to your regularly scheduled programming, safe in the knowledge that 2013 will bring a fresh installment of marginally informed tea-leaf reading and vaguely-docket-related “jokes.”  Happy Holidays!

Thanks to Conor McEvily, Eric White, and Jeremy Marwell for compiling and drafting this update.


Kentucky v. King
(relisted after the December 7 Conference)

Issue(s):  (1) Whether the hot pursuit exception to the warrant requirement is contingent on a subjective determination of pursuit; and (2) what constitutes a serious offense for purposes of dispensing with the warrant requirement; and what test or tests is proper to determine when warrantless entry is permissible.

City of New York v. Southerland
(relisted after the December 7 Conference)

Issue(s):  (1) Whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, the qualified immunity question as to a caseworker who removed a child in an investigation mandated by New York Social Services Law § 424 should be whether a reasonable jury could conclude that the child was not at imminent risk of harm or whether a reasonable caseworker in that particular caseworker’s position could have concluded that the child was; (2) whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, a caseworker is entitled to qualified immunity from suit where five judges of the United States Court of Appeals for the Second Circuit agree that there was an absence of clearly established statutory or constitutional rules of which the caseworker should have been aware when he secured a warrant to search a home and removed children at the direction of his superior; and (3) whether, after removing children from a home under the belief that they were abused, and, thereafter, a state court adjudicates a parent to have been so abusive of his children as to deny him further custody, the parent and the children can sue the caseworker who rescued children from further abuse on either substantive or procedural due process grounds

Bond v. United States
(relisted after the November 2, November 9, November 20, November 30, and December 7 Conferences)

Issue(s):  (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Dec. 11, 2012, 3:27 PM), http://www.scotusblog.com/2012/12/relist-and-hold-watch-33/