Relist Watch: Oh yes they call it the Streak
¡Buenos días aficionados del Relists! ¡Y feliz Cinco de Mayo tardío! While Monday’s holiday gave much of the country a chance to respectfully pay tribute to another culture — demonstrating once again that America is a great melting pot (of drinking holidays) — the Court celebrated in its own way, issuing a handful of opiñions and cert. grants, and relisting a few new cases as well. So without further delay, vámonos a los relists.
As is our custom, we begin with last week’s resolved relists. With grants this week in both T-Mobile South, LLC v. City of Roswell, 13-975, and M&G Polymers USA, LLC v. Tackett, 13-1010, the Court extended its streak of relisted cert. grants to sixteen — meaning that we at Relist Watch have escaped humiliation a little while longer for sticking our collective neck out by suggesting this pattern might mean something. (At this point, the question may be what case in the pipeline is so plainly devoid of vehicle problems that the Court skips what we’re guessing is a relist to run a final quality check.) T-Mobile, a two-time relist from the Eleventh Circuit, asks what satisfies the Communication Act’s requirement that an application denial be “in writing.” M&G Polymers, a one-time relist from the Sixth Circuit, addresses the construction of collectively bargained retirement plans.
Other relists also came out ahead. After relisting the case eight times since receiving the record, the Court issued an opinion summarily vacating the judgment below in Tolan v. Cotton, 13-551, a qualified immunity case involving a man shot after police mistakenly concluded his car was stolen because of an error in entering his license plate in a computer; the Court concluded that the Fifth Circuit had “failed to adhere to the axiom that, in ruling on a motion for summary judgment, ‘all justifiable inferences are to be drawn in [the nonmovant’s] favor.’” Although the Court managed to avoid using the actual word during an entire opinion discussing “indecent” language, the Court managed to drop the F-bomb twice in the short per curiam opinion — only the thirteenth opinion in the Court’s history to use the unexpurgated term. The Court called for the Solicitor General’s views in Federal National Mortgage Association v. Sundquist, 13-852, a case involving the power of a state to restrict an out-of-state national bank’s exercise of its fiduciary powers in that state. Because, as a statistical matter, a CVSG increases the odds of a grant in a paid case forty-six-fold, it is the next best thing to a grant.
Alas, not all news was good news for last week’s relists. The Court denied review in the twice-relisted (and closely watched) Drake v. Jerejian, 13-827, presenting a constitutional challenge to the Garden State’s handgun carry permit laws. The Court also denied cert. in Beard v. Aguilar, 13-677, a case in which California sought to reverse the Ninth Circuit’s determination that Brady v. Maryland was unreasonably applied in a case involving alleged dog sniff errors. Justice Alito, joined by Justice Scalia, dissented from the Court’s decision to deny certiorari, writing, “I dissent from the Court’s decision to deny certiorari.”
As for the leftovers from last week, we’ve got a trio of dishes back on the relist menu. First off, hardy perennial Ryan v. Hurles, 12-1472, celebrated its twenty-first relist this week. In the not-unlikely event that you’ve prudently skipped every Relist Watch since October, the case asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim. Surely, there are no more memos or opinions concurring or dissenting in part to write, and the Justices can finally spring the case upon us. The Court also relisted, for a ninth time, Martinez v. Illinois, 13-5967, which asks whether jeopardy attaches when a jury is sworn after the prosecution refuses to participate in the case. And Thomas v. Nugent, 13-862, has now notched relist number three; it asks whether it was clearly established that a police officer violates the Fourth Amendment when he tases a handcuffed but non-cooperative suspect eight times.
On to new business. The Court added two new cases to the relist rolls this week. Department of Homeland Security v. MacLean, 13-894, involves a federal air marshal who was fired by the Transportation Security Administration (TSA) when he publically revealed certain “Sensitive Security Information” whose disclosure is restricted by TSA regulations. The marshal challenged his removal on the grounds that it violated 5 U.S.C. § 2302(b)(8)(A), under which an agency generally cannot fire an employee for disclosing information if the employee reasonably believed the information revealed (among other things) mismanagement, illegality, or abuse. However, the statute is inapplicable if the employee’s disclosure of information was “specifically prohibited by the law.” The question presented in MacLean is whether the protections codified at Section 2302(b)(8)(A) “can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.”
This week’s second relist is a Georgia death penalty case, Sears v. Chatman, 13-8725. Sears has been to the Court before. In 2010 the Court issued a per curiam opinion (after calling for the record and nine relists) summarily vacating a Georgia Superior Court decision for misapplying the second (prejudice) prong of Strickland v. Washington. That opinion, by the way, was the last time the Court used the F-word (as opposed to “the F-word”) in an opinion. After the case was remanded, the Superior Court again denied Sears’s ineffective assistance claim, which the Georgia Supreme Court affirmed. In his petition, Sears presses the following two questions: (1) did the Georgia Supreme Court violate the Supreme Court’s mandate and the petitioner’s Sixth and Fourteenth Amendment rights by revisiting the first prong of Strickland (deficient performance by counsel) and by finding that counsel’s performance was constitutionally adequate; and (2) did the Georgia Supreme Court violate the Supreme Court’s mandate and the petitioner’s Sixth and Fourteenth Amendment rights by failing to properly weigh the evidence that petitioner was prejudiced by his trial counsel’s performance in satisfaction of Strickland’s second prong.
The Court also appears to have rescheduled a pair of cases for its May 15 Conference, both of which were originally scheduled for the May 2 Conference. (We assume that the Court did so to allow them to be considered with another case that raises a related issue, but we don’t yet know what case that is.) In Pitcairn Properties, Inc. v. LJL 33rd Street Associates, LLC, 13-879, LJL attempted to exercise its option to buy Pitcairn’s shares in a company for a price that was pegged to the market value of a NYC highrise (named “The Magellan,” which sounds way cooler if you overlook that its eponym died a horrific death). The two parties arbitrated the issue of the property’s market value, during which the arbitrator excluded evidence of an offer made on the property. Pitcairn’s petition asks whether the Court should adopt a per se rule that an arbitrator commits “misconduct … in refusing to hear evidence pertinent and material to [a] controversy” under the Federal Arbitration Act when the arbitrator excludes “the sole relevant and non-cumulative evidence in support of a fact material to the controversy, without a need for the party to show prejudice or bad faith.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the respondent in this case.]
OBB Personenverkehr AG v. Sachs, 13-1067 was also rescheduled this week for the May 15 Conference. After purchasing a Eurail pass from a U.S.-based internet ticket seller, Sachs was injured in a train accident in Austria. Sachs sued OBB, the rail instrumentality of the Republic of Austria, and, after first being denied relief on the grounds that the Foreign Sovereign Immunities Act (FSIA) insulated OBB from suit, ultimately prevailed before the Ninth Circuit en banc. OBB’s petition presents two questions: (1) whether, for purposes of determining whether an entity is an “agent” or a “foreign state” under FSIA’s commercial activity exception, the express definition of “agency” is controlled by the factors set forth in First National City Bank v. Banco Para el Comerico Exterior de Cuba (Bacec), or by common law principles of agency; and (2) whether, under FSIA’s commercial activity exception, “a tort claim for personal injuries suffered in connection with travel outside of the [U.S.] is ‘based upon’ the allegedly tortious conduct occurring outside the [U.S.] or the preceding sale of the ticket in the [U.S.] for the travel entirely outside the [U.S.].”
Finally, though we think of the case as more of a “released hold” than a relist, the Court has scheduled Elmbrook School District v. Doe, 12-755, for its May 15 conference. Elmbrook, which was relisted six times before being held for Town of Greece v. Galloway, has been on ice for precisely 364 days. It may be destined for a simple grant, vacate, and remand, but, as Lyle reported yesterday, counsel for the school district have filed a supplemental brief in the wake of the Court’s Town of Greece opinion urging that Elmbrook is independently cert.-worthy. We’ll see if the case, which involves the propriety of holding a school function in a church building, grabs the Court’s attention.
And with that, we’ve done our penance for making cinco de mayo jokes. The Court won’t be conferencing until next week, so we recommend that readers enjoy the reprieve from these tedious dispatches by soaking up some rays. ¡Adios amigos!
Thanks to Conor McEvily for compiling and drafting this update.
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, April 18, April 25, and May 2 Conferences)
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, April 18, April 25, and May 2 Conferences)
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, April 18, April 25, and May 2 Conferences)
Issue: Whether this Court should adopt a per se rule providing that an arbitrator commits "misconduct . . . in refusing to hear evidence pertinent and material to the controversy" within the meaning of Section 10(a)(3) of the Federal Arbitration Act when an arbitrator excludes the sole relevant and non-cumulative evidence in support of a fact material to the controversy, without a need for the party to show prejudice or bad faith.
(relisted after the May 2 Conference)
Issue: Whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.
(relisted after the May 2 Conference)
Issue: (1) Whether, for purposes of determining when an entity is an “agent” of a “foreign state” under the first clause of the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), the express definition of “agency” in the FSIA, the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba, or common law principles of agency, control; and (2) whether, under the first clause of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2), a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States or the preceding sale of the ticket in the United States for the travel entirely outside the United States.
(relisted after the May 2 Conference)
Issue: (1) Whether the Georgia Supreme Court, on return from remand following this Court’s decision in Sears v. Upton, violated both this Court’s mandate and petitioner’s Sixth and Fourteenth Amendment rights by (A) revisiting the first prong of Strickland v. Washington, deficient performance by counsel, and (B) finding that trial counsel’s performance was constitutionally adequate; and (2) whether the Georgia Supreme Court violated both this Court’s mandate and petitioner’s Sixth and Fourteenth Amendment rights by failing to properly weigh the evidence that petitioner was prejudiced by his trial counsel’s performance in satisfaction of the second prong of Strickland v. Washington.
(relisted after the May 2 Conference)
Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.
(rescheduled after the May 2 Conference)
Recommended Citation: John Elwood, Relist Watch: Oh yes they call it the Streak, SCOTUSblog (May. 9, 2014, 11:54 AM), http://www.scotusblog.com/2014/05/relist-watch-oh-yes-they-call-it-the-streak/