John Elwood reviews Monday’s relisted cases.

We begin this week’s edition with speculation about a possible shift in Supreme Court practice that may launch scrutiny of Supreme Court relists from its current tidal eddy of obscurity into . . . well, a slightly larger but equally obscure eddy.  One swallow does not a summer make, but with apologies to Aristotle, Cervantes, and suchlike paragons of the Western Literary Tradition, a dozen hirundines in a row may at least suggest a warming trend.

Earlier this week I remarked that all of this week’s grants came from among the ranks of the relists, and noticed similar instances earlier this year.  But as the eagle-eyed Hashim Mooppan pointed out to me, the relist streak has been far longer and more consistent.  At the risk of being the guy who calls the no-hitter at the top of the second inning, OT2014 is currently an all-relist Term.

Over the last nine Conferences, the Court has granted a dozen cases for argument next Term, each one of which was relisted at least once:  Heien v. North Carolina, 13-604 (granted at the April 18 Conference, relisted once); Johnson v. United States, 13-7120 (ditto); Zivotofsky v. Kerry, 13-628 (granted at the April 18 Conference, relisted twice); Dart Cherokee Basin Operating Co. LLC. v. Owens, 13-719 (granted at the April 4 Conference, relisted once); Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 13-854 (granted at the March 28 Conference, relisted twice); Jennings v. Stephens, 13-7211 (granted at the March 21 Conference, relisted once); Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., 13-640 (granted at the March 7 Conference, relisted once); Integrity Staffing Solutions v. Busk, 13-433 (granted at the February 28 Conference, relisted once); Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 13-435 (ditto); North Carolina State Board of Dental Examiners v. FTC, 13-534 (ditto); Holt v. Hobbs, 13-6827 (ditto); Warger v. Shauers, 13-517 (ditto, plus a call for the record).  The last case the Court granted without a relist was Riley v. California, 13-132 (granted on January 17, after a call for the record), which will be argued on the penultimate argument day of OT2013.

Time will tell whether this remarkable pattern continues.  If it does, we will be forced to break from our normal practice of fixating on the dullest minutiae of the Court’s docket to contemplate, as our tipster suggests, that this may reflect a conscious change in practice and not simply a striking coincidence.  If indeed the Court has adopted a policy of relisting cases before granting, it may be akin to a “stop, look, and listen” after a provisional decision to grant – intended to give the Justices and their clerks additional time to review grant candidates for vehicle problems or other concerns.  Maybe the Justices decided after dismissing three cases as improvidently granted this Term that they need one last check before giving a case the nod; perhaps it’s only a temporary measure.  Most likely, now that I’ve stuck my neck out, Monday will bring a spate of grants in cases fresh out of their first Conference.

We pause to allow both of our faithful readers to regain their composure.

Turning to our usual mundanities: starting as always with “old business,” it should now come as no surprise that all three of this week’s grants were discussed in our last installmentHeien v. North Carolina, 13-604 (involving the validity of a search resulting from a police officer’s mistake of law); Zivotofsky v. Kerry, 13-628 (involving the constitutionality of a federal law directing the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as “Israel”); and Johnson v. United States, 13-7120 (whether possession of a short-barreled shotgun is a violent felony under the Armed Career Criminal Act).  The Court denied cert. in five-time relist Hussain v. Obama, 13-638, addressing the proper standard for a Guantanamo detainee’s habeas petition; Justice Breyer issued a solo statement respecting the denial, suggesting that down the road he might support the Court addressing whether the 2001 Authorization for Use of Military Force authorizes (and the Constitution permits) detention on the basis that an individual was part of al Qaeda or the Taliban, but not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

The rest of last week’s repeat offenders are back for another dip in the cert. pool, including the sui generis Ryan v. Hurles, 12-1472 (a remarkable nineteen relists; addressing whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim); Tolan v. Cotton, 13-551 (seventh relist since receipt of the record; a qualified immunity claim arising in the case of a man shot because of a license-plate typo); Martinez v. Illinois, 13-5967 (seventh relist since receipt of record; whether jeopardy attaches if a jury is sworn but the prosecution refuses to participate in the case); and Thomas v. Nugent, 13-862 (rescheduled after the March 28 Conference and now officially relisted; addressing whether it was clearly established that a police officer violates the Fourth Amendment when he tases a handcuffed but non-cooperative detainee eight times).

Turning to something a bit fresher, the biggest news is the Court’s relist in Drake v. Jerejian, 13-827, which asks (1) whether the Second Amendment secures a right to carry handguns outside the home for self-defense, and (2) whether state officials may constitutionally require that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.  Petitioners seek review of a decision of the Third Circuit upholding New Jersey’s handgun permit laws, which require an applicant to show a “justifiable need to carry a handgun.”

In the running for one of the most interesting and unusual QPs of the season, Yates v. United States, 13-7451, seeks review of whether a commercial fisherman’s decision to throw undersized red grouper overboard (after a deputized federal agent had issued a citation and ordered him to bring the fish to port) falls within Sarbanes-Oxley’s “anti-shredding” prohibition (18 U.S.C. § 1519) on knowingly altering or destroying any “record, document, or tangible object” with the intent to impede an investigation.  This represents a curious exercise of “vast” federal enforcement discretion, since the kerfuffle arises because agents say they found seventy-two undersized groupers aboard, and only sixty-nine made it to port.  As a Nation, we clearly need to get to the bottom of this.

The Court also relisted for the first time in Federal National Mortgage Association v. Sundquist, 13-852, out of the Utah Supreme Court, asking whether a state can restrict a national bank’s exercise of its fiduciary powers in connection with real property in that state, if the bank is authorized to act as a fiduciary by the Comptroller of the Currency and not prohibited from doing so by the (different) state in which the bank is “located.”  Another first-time relist is T-Mobile South, LLC v. City of Roswell, 13-975, involving the Communications Act’s requirement that a state or local government’s decision denying a request to site or construct certain wireless service facilities must be “in writing.”  The petition alleges a four-two split about whether a document stating that such an application has been denied, but providing no reasons, satisfies the “in writing” requirement.

The Court also relisted for the first time in a trio of cases alleging a split involving the Truth in Lending Act (TILA):  Jesinoski v. Countrywide Home Loans, Inc., 13-684, Keiran v. Home Capital, Inc., 13-705, and Takushi v. BAC Home Loans Servicing, 13-884.  Each of the petitions alleges a circuit split about whether a borrower exercises his right to rescind a mortgage loan under the TILA by merely notifying the creditor within three years of consummation of the transaction, or whether the borrower must file a lawsuit to rescind within that period.  (If a borrower must also file suit, Takushi includes as a second question whether that rule must be limited to prospective application.)  The respondents filed a single brief in opposition to the three petitions; the Court may use the extra week to decide among the potential vehicles, or just to sort it all out.

Dykes v. South Carolina, 13-8037, another new relist, involves a constitutional challenge to a South Carolina statute (that state’s version of “Jessica’s Law”) that imposes mandatory GPS monitoring for released sex offenders.  Interestingly, the state does not appear to have sought cert. from a different portion of the opinion of the South Carolina Supreme Court, which struck down on due process grounds a statutory requirement of lifetime GPS monitoring without the possibility of judicial review.

Rounding out the new offerings, the Court relisted in yet another Armed Career Criminal Act, Espinoza v. United States, 13-7909, alleging a split about whether an offense with a mens rea of recklessness can trigger the sentence enhancement set out in ACCA’s “residual clause,” 18 U.S.C. § 924(e)(2)(B)(ii), and whether such an offense can ever be “purposeful” under that section and Begay v. United States.

With that, we return you to regularly scheduled programming.  Tune in next week as we test our hypothesis that Every Grant Begins With Relist; will the streak continue, or will we be served up a delicious slice of humble pie?

Thanks to Dmitry Slavin and Jeremy Marwell for compiling and drafting this update.


12-1472

Issue: 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,  February 28, March 7, March 21, March 28, April 4, and April 18 Conferences)

13-551

Issue: 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, February 28, March 7, March 21, March 28, April 4, and April 18 Conferences)

13-5967

Issue: 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, February 28, March 7, March 21, March 28, April 4, and April 18 Conferences)

13-862

Issue: (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.

(relisted after the March 28 and April 18 Conferences)

13-827

Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

(relisted after the April 18 Conference)

13-7451

Issue: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

(relisted after the April 18 Conference)

13-852

Issue: Whether a state can restrict a national bank’s exercise of its fiduciary powers in connection with real property in that state if the bank is authorized to act as a fiduciary by the Comptroller of the Currency and not prohibited from doing so by the (different) state in which the bank is “located” under 12 U.S.C. § 92a and 12 C.F.R. § 9.7.

(relisted after the April 18 Conference)

13-975

Issue: Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

(relisted after the April 18 Conference)

13-684

Issue: Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

(relisted after the April 18 Conference)

13-705

Issue: Whether, to exercise the right to rescind a mortgage loan under the Truth in Lending Act, it is sufficient for a consumer to notify the creditor in writing within three years of obtaining the loan (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer must also file suit within that three-year period (as the Eighth, Ninth, and Tenth Circuits have held).

(relisted after the April 18 Conference)

13-884

Issue: Whether, pursuant to Section 1635(f) of Title 15 of the U.S. Code, a borrower seeking to rescind a mortgage loan based upon Truth in Lending Act violations must bring suit within three years of loan consummation; and (2) if so, whether such a restrictive interpretation of Section 1635(f) of Title 15 should be limited to prospective application only as a new rule, since most borrowers and their attorneys otherwise relied to their detriment upon a contrary interpretation of the relevant language contained in this Court's 1998 decision in Beach v. Ocwen Federal Bank.

(relisted after the April 18 Conference)

13-8037

Issue: (1) Whether permanently attaching a GPS tracking device to a sex offender’s body and continuously tracking her in public and private places solely on the basis of her prior conviction for a sex offense and not on her current dangerousness constitutes punishment such that imposing it post-sentencing violates the Ex Post Facto Clause; and (2) whether permanently attacking a GPS tracking device to a sex offender’s body and continuously tracking her in public and private places for ten years without review solely on the basis of her prior conviction for a sex offense and not on her current dangerousness violates the Fourteenth Amendment’s Due Process Clause.

(relisted after the April 18 Conference)

13-7909

Issue: (1) Whether the Court should resolve the division between the circuits as to whether an offense with a mens rea of recklessness can trigger the sentence enhancement set out in 18 U.S.C. § 924(e)(2)(B)(ii), the residual clause of the Armed Career Criminal Act; and (2) whether an offense that requires only a mens rea of recklessness toward the act causing or risking injury can ever be “purposeful” as that term was used by this Court when interpreting § 924(e)(2)(B)(ii) in Begay v. United States.

(relisted after the April 18 Conference)

Posted in Cases in the Pipeline, Merits Cases

Recommended Citation: John Elwood, Relist Watch: What Does the Court’s Relist Streak Mean?, SCOTUSblog (Apr. 23, 2014, 11:50 AM), http://www.scotusblog.com/2014/04/relist-watch-what-does-the-courts-relist-streak-mean/