John Elwood reviews Monday’s relisted cases from aboard Virgin America #84 over Red Cloud, Nebraska

Good news for those mourning the conclusion of this year’s award season: the Court has been busy this week burnishing its own versions of little golden idols statuettes, and winnowing its list of award winners.  So thank your lucky stars—be they falling, fading, or shooting – and brace yourself for another week’s Relist Watch.

As is customary, we begin by checking in with our alumni.  On Monday, a quintet of Relist Watch Charm School graduates got parts for the next season of the continuing drama First Street 20543.  Integrity Staffing Solutions, Inc. v. Busk, 13-433, addresses whether warehouse workers must be compensated under the Fair Labor Standards Act for time spent in security screenings after the end of their work shifts.  Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 13-435, will likely resolve a circuit split regarding whether Section 11 of the Securities Act of 1933 applies to statements of opinion that are objectively wrong, or whether the statute requires a plaintiff to allege that the defendant did not believe them at the time.  In Warger v. Shauers, 13-517, the Court will confront whether the jury testimony rule (Federal Rule of Evidence 606(b)) allows a party moving for a new trial based on juror misconduct to introduce juror testimony about statements made during deliberations.  North Carolina Board of Dental Examiners v. Federal Trade Commission, 13-534, asks whether the board is properly treated as a private actor, and thus not exempt from the antitrust laws as a state actor, because a majority of its members are market participants elected by other market participants.  And in Holt v. Hobbs, 13-6827, the Court will address whether the Arkansas Department of Corrections’ “no-beard” grooming policy violates the Religious Land Use and Institutionalized Persons Act.  Congratulations to all our winners; the Court really seems to like you – really like you.

Sadly, many of our lovely and talented nominees will be returning home empty handed, forced to say through gritted teeth that it was an honor just to be nominated.  It was bad news for City of Farmers Branch, Texas v. Villas at Parkside Partners, 13-516, and City of Hazleton, Pennsylvania v. Lozano, 13-531, both of which sought review of judgments holding local ordinances that prohibited renting housing to undocumented immigrants a (preempted) regulation of immigration.   The Court likewise snubbed the Sooner State’s petition in Trammell v. Williams, 13-587, in which the Tenth Circuit granted habeas relief after finding that the Oklahoma Court of Criminal Appeals clearly violated Beck v. Alabama.  And finally, the Court denied cert. in Romeike v. Holder, 13-471, involving a couple who fled Germany after being fined and threatened with prison for home-schooling their children.  Our thoughts are with these also-rans; but as a consolation prize, they will receive total consciousness – which is nice.

Despite the many departures, a handful of last week’s relists are still in the running.  This includes the Susan Lucci of relists, Ryan v. Hurles, 12-1472, whose unprecedented fourteen episodes in this feature have left it typecast in the role of perennial relist; it seems unlikely to win a leading role on the next season of First Street, but may be able to find work in a summary reversal or, barring that, the legal equivalent of a straight-to-video movie involving talking pets, the dissent from denial of cert.  (Although goodness knows, there would have to be a lot of separate opinions to justify that many relists.)  For those of you who cannot already recite the question presented in your sleep, the Ryan v. Hurles petition asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  Also back for another go-round is The Falls Church v. The Protestant Episcopal Church in the United States of America, 13-449, a dispute between the national Episcopal Church and a former congregation.  And finally, Tolan v. Cotton, 13-551, a case involving a qualified immunity claim arising out of a police officer’s error entering a license plate number that resulted in a shooting, and Martinez v. Illinois, 13-5967, a case asking whether jeopardy attaches when the prosecution refuses to participate in a case because its witnesses didn’t show up but the jury is sworn anyway: Both were relisted for a second time.

Alright, alright, alright . . . on to the new nominees.  Atop this this week’s trio of first-time relists is Hussain v. Obama, 13-638.  Hussain, who is an involuntary guest of the U.S. government at Guantanamo Bay, asks whether the court of appeals failed to properly apply the preponderance of the evidence standard to his habeas petition, thereby depriving him of meaningful review under Boumediene v. Bush.  Another new hopeful straight off the bus is Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., 13-640, a case that asks whether, under American Pipe & Construction Co. v. Utah, the filing of a putative class action serves to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of the putative class members.  So the Court continues to keep a close eye on petitions involving class actions.

Last but not least is Gomez v. Stephens, 13-6646, a case coming to you from the state of outsized egos and downsized amigos.  The family that deals together, appeals together: Gomez and his siblings were arrested in Texas for possession of drugs with intent to distribute.  Gomez’s attorney did not appear at either of the two hearings in his case involving his motion to suppress evidence, and unbelievably enough, the motion was denied.  Now serving a sixty-year sentence, Gomez seeks habeas relief arguing that he was denied counsel at a “critical stage” of his criminal proceedings in violation of United States v. Cronic.

And with that, we’re done for the week.  Tune in next week for another recap from the Red Carpet.

Thanks to Dmitry Slavin 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, November 26, December 6, December 13, January 10, January 17, January 24, February 21 and February 28 Conferences)


Issue(s): (1) Whether the First Amendment permits civil courts to retroactively impose a “trust” on church property based on church canons that were never embodied in any secular instrument of property ownership and did not comply with state law at the time of their adoption; (2) whether the Contracts Clause permits civil courts resolving church property disputes to apply changes to state statutory law retroactively.

(relisted after the January 24, February 21, and February 28 Conferences)


Issue(s): Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.

(relisted after the February 21 and February 28 Conferences)


Issue(s): Whether a defendant is acquitted for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, where a court grants a motion for directed verdict after the prosecution refuses to present any evidence at trial to the empaneled and sworn jury.

(relisted after the February 21 and February 28 Conferences)


Issue(s): (1) Whether the court of appeals failed to apply the governing preponderance of the evidence standard in affirming the denial of petitioner's habeas corpus petition, thus denying him the meaningful review mandated by Boumediene v. Bush; and (2) whether the court of appeals improperly shifted the burden of proof to petitioner to disprove affiliation with al Qaeda or the Taliban at the time of his capture.


Issue(s): Whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.


Issue(s): (1) Whether, under the Antiterrorism and Death Penalty Act of 1996, a Franks v. Delaware hearing is a "critical stage of the criminal proceedings" as envisioned in United States v. Cronic, where petitioner's attorney's presence is required by the Sixth Amendment; (2) whether the court of appeals erred when it held that petitioner's right to his attorney's presence at a Franks hearing was not violated when the state trial court held such a hearing; (3) whether petitioner's Sixth Amendment right to confront and cross examine his accusers was violated by the absence of his attorney at his Franks hearing; (4) whether petitioner's attorney's absence from his Franks hearing was a knowing, intelligent, and voluntary waiver by petitioner as required by Johnson v. Zerbst; and (5) whether a conflict of interest arose and existed due to petitioner's attorney's absence and therefore lack of representation at the Franks hearing.

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch – Live from 35,000 feet, SCOTUSblog (Mar. 7, 2014, 3:30 PM),