John Elwood reviews Monday’s relisted cases.

It’s coming up on The Most Wonderful Time of the Year.  Not because of the bountiful feasts with loved ones; not because you can get that special gift for Dad, Mom, and Stepmom; not even because the government has finally succeeded in revamping the health-care website.  What makes it wonderful is that we’re coming up on the holiest time of the year.  I’m talking, of course, of the nearly month-long reprieve from Relist Watch the world enjoys every December and January.  Peace on Earth!

One of last week’s relists is heading back from whence it came.  Two-time relist Ford Motor Company v. United States, 13-113, concerned the interaction of the strict-construction canon for sovereign immunity and the interpretation of a separate statutory provision creating substantive rights, as FoMoCo sought $445 million in overpaid taxes.  But after acquiescing in jurisdiction in the district court,  the government argued in its brief in opposition that Ford should have brought its claim in the Court of Federal Claims.  In a Monday per curiam opinion, the Court granted, vacated, and remanded to the Sixth Circuit for further consideration.  It looks like Uncle Sam has an uphill fight ahead of it in the Sixth Circuit, as it seems like the government will need to obtain hearing en banc to overcome what the government conceded to be circuit precedent foreclosing its view (see pp. 3-4, n.4).  And not to be too much of a nerd, but then the government will have to contend with the plain language of 28 U.S.C. § 1346(a)(1), which gives district courts jurisdiction over “[a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously . . . assessed or collected.”

Ryan v. Hurles, 12-1472, involving whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim, is back for a nausea-inducing seven relists.  As serial time-wasters will recall, the seventh relist entitles petitioner to a free lunch from this unnaturally happy-looking group of strigiformes.

Two new relists join Hurles in temporary lock-up.  First up is Hegab v. Long, 13-256, concerning federal court jurisdiction to review agency security-clearance revocations.  Mr. Hegab had top-secret security clearance at the National Geospatial-Intelligence Agency (“NGIA”) – not to be confused with its equally clandestine Lincoln, Nebraska counterpart.  The NGIA revoked Hegab’s clearance after he married a dual citizen of Jordan who worked for Islamic Relief USA, on the ground that marriage to a dual citizen made him a heightened risk for target by foreign intelligence or security services.  Hegab sought review in federal district court, alleging violations of his First, Fifth, and Ninth (!) Amendment rights as a result of “anti-Islamic bias,” and the court dismissed for lack of jurisdiction.  The Fourth Circuit affirmed, and the panel members managed to file three opinions.  Maybe the Justices need more time to read them all.

Last up is Fulmer v. Texas, 13-5769.  Back in October, the Court denied Fulmer’s petition, which alleged due process infirmities with allowing Texas juries to convict without unanimously agreeing that the same two acts occurred under the “two or more acts” element of a Texas law criminalizing continuous sexual abuse of a child under the age of fourteen.  Meanwhile, the Court had called for a response to the petition in Kennedy v. Texas, 13-5714, a case raising the same question.  Fulmer filed a petition for rehearing to allow Fulmer to be considered alongside Kennedy.  Alas, on Monday, the Court denied cert. in Kennedy.  Thus, the odds seem to be against Fulmer sticking around another week.

That’s all for this week.  Before signing off, we would be remiss if we did not first note the forty-second anniversary of the event that gave birth to the song “Smoke on the Water,” thus convincing generations of mullet-wearing no-talent teenagers that they could play guitar.  Which makes it entirely fitting to celebrate the event in this season of hope.

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


Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(relisted after the September 30, October 11, October 18, November 1, November 8, November 15, and November 26 Conferences)


Issue(s): Whether a Federal District Court may review a decision of a federal agency revoking the security clearance of an employee where the employee has made a colorable claim that the decision revoking his clearance was in violation of his rights under the First, Fifth and Ninth Amendments to the U.S. Constitution.

(relisted after the November 26 Conference)


Issue(s): (1) Texas has enacted a statute, Texas Penal Code § 21.02, which criminalizes continuous sexual abuse of a child or children under age 14. A jury is permitted to convict someone without unanimously agreeing exactly which two acts occurred. All the jury has to unanimously decide is that any two acts (24 total acts if there are 12 jurors) occurred over a period lasting 30 days or more. Does this statute violate the federal constitutional requirements of a unanimous jury verdict in criminal prosecutions or due process of law? Or is the statute constitutional because, as the Texas appellate courts have held, the “two or more acts” element is only the “manner and means” of committing this offense, and therefore the jury does not need to unanimously agree which two acts occurred in order to convict; (2) Texas Government Code § 508.145(a) prohibits someone convicted of continuous sexual abuse of a child or children under age 14 from being parole eligible. However, someone convicted of a multiple, specific acts of abuse against a child or children under age 14 remains parole eligible. Does this legislative classification violate the federal constitutional guarantee of equal protection of the laws, especially when, as here, a defendant is convicted of both continuous sexual abuse, which is not parole eligible, and specific acts of abuse, which are parole eligible.

(relisted after the November 26 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Dec. 5, 2013, 2:31 PM),