John Elwood reviews the last of the Term’s relists.

It’s that time of the year again.  Months of anticipation, weeks of pure speculation, topped off by a day or two of rapt attention.  And then all of that ends, the Justices head off for the delights of the summer, and we all return to our normal state of confronting the emptiness of our lives.  But instead of dwelling on your regrets, accentuate the positive: think of all the extra time you’ll have to spend productively now that you no longer have to set aside thirty seconds each week to half-heartedly skim a list of cases.  But you still have one more column to slog through before you can do that.

We’re pleased to report that all of last week’s relists have found loving homes.  Two left for greener pastures.  Just when we were beginning to entertain doubts about the eHarmony algorithm, after six dates in the Relist Lounge, the Court finally granted cert. in Sixth Circuit state-on-top habeas case White v. Woodall, 12-794.  Meanwhile, it was darned near love at first sight for Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094, which was granted the morning after its second Conference.  Fellow one-time relist Pruitt v. Nova Health Systems, 12-1170, which raises similar issues, appears to be on hold for ClinePruitt should just go ahead and get comfortable, since the road to First Street for Cline runs through Oklahoma City.

The Court is also holding three-time relists Amy and Vicky, Child Pornography Victims v. U.S. District Court for the Western District of Washington, 12-651, and Wright v. United States, 12-8505, for that upstart non-relist Paroline v. United States, 12-8561, which the Court took to decide what, if any, nexus the government or child-pornography victim must prove between the defendant’s conduct and the victim’s harm or damages in order to receive restitution under 18 U.S.C. § 2259.  The fate of three-time-relist Harris v. Quinn, 11-681 – the First Amendment challenge to compelled use of a representative to seek greater Medicaid reimbursements – is clear:  it’s being held.  But the reason for the hold is not; our best guess is Monday’s grant in one-time relist Unite Here Local 355 v. Mulhall, 12-99, which raises a not-completely-dissimilar labor-relations issue.

Many of the other relists yielded opinions, but probably not the ones petitioners were hoping for.  The Court GVR’d in former two-time relist Marrero v. United States, 12-6355 (concerning application of the ever-popular modified categorical approach for determining career offender status), in light of the June 20 decision in Descamps v. United States, as anticipated.  But Justice Alito, joined by Justice Kennedy, dissented from that disposition, lamenting that “the Court’s elaboration of its ‘modified categorical’ approach has completely lost touch with reality.”  The petitioner in five-time state-on-bottom habeas relist Gallow v. Cooper, 12-7516, had to settle for even less; his petition was denied with nary a dissent, only a statement accompanying denial from Justice Breyer (joined by Justice Sotomayor).  They found Gallow’s situation indistinguishable from the petitioner’s in Trevino v. Thaler.  Not to be outdone, Justice Thomas penned a full dissent from the denial of cert. in relist newcomer Lanus v. United States, 12-862, which gave the Justices a chance they apparently don’t need to overturn Feres v. United States, a 1950 case holding that the Federal Tort Claims Act does not waive the United States’s sovereign immunity for a serviceman’s claims of service-related injury.

Finally, the Circle of Relist begins again as the Court appears to have relisted one petition before flying the coop:  Octane Fitness v. Icon Health and Fitness, 12-1184, out of the Federal Circuit, concerns what constitutes an “exceptional case” under 35 U.S.C. § 285, which permits courts to grant prevailing patent infringement litigants reasonable attorney’s fees in “exceptional cases.”  Octane Fitness – the makers of what appears to be specialized racks for hanging clothes – argues that the Federal Court’s standard for prevailing accused-infringers is much higher than for prevailing patent-holders.  A rather timely issue, given the recent public discussion of patent trolls, not to be confused with patent-leather trolls.

And with that, we draw a close to our coverage of the minutiae of the Supreme Court’s docket.  On your way home tonight, pick up some analgesic to help you work your way through the mild discomfort you may experience from withdrawal of Relist Watch.  But, barring the unthinkable, just a few short months from today, Relist Watch OT2013 will be back with what you crave.  Until then, follow the advice of the sages over at LaDonna’s Hair and Art Studio in Simsbury, Connecticut, and “Spend Some Time on YOU!

Thanks to V&E summer associate Varun Jain and Eric White for compiling and drafting this update.  These formulaic docket rehashes just don’t write themselves; sincere thanks to Eric, Jeremy Marwell, Conor McEvily, Travis Wimberly, and Varun for all their help this Term.


12-1184

Issue: Whether the Federal Circuit’s promulgation of a rigid and exclusive two-part test for determining whether a case is “exceptional” under 35 U.S.C. § 285 improperly appropriates a district court’s discretionary authority to award attorney fees to prevailing accused infringers in contravention of statutory intent and this Court’s precedent, thereby raising the standard for accused infringers (but not patentees) to recoup fees and encouraging patent plaintiffs to bring spurious patent cases to cause competitive harm or coerce unwarranted settlements from defendants.

(relisted after the June 20 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch wrap-up, SCOTUSblog (Jul. 1, 2013, 10:50 AM), http://www.scotusblog.com/2013/07/relist-watch-wrap-up/