John Elwood reviews Monday’s relisted cases.

It’s six o’clock on Thanksgiving. The Cowboys are down thirty at halftime. All of the fun people in your family have either fallen into food comas or left for some early Black Friday shopping (sidebar: is it still “Black Friday” when it starts on Thursday or even earlier?). You can’t bring up the presidential race because your weird uncle is going to say something offensive. There is only one place for a desperate nation to turn: the Thanksgiving edition of Relist Watch.

Let’s start with this week’s winners. It is a list that, as usual, does not include the Cowboys. Whole Woman’s Health v. Cole, 15-274, was granted after a single relist. The Court will consider the constitutionality of a Texas law that requires doctors who perform abortions to have admitting privileges at a nearby hospital and requires clinics that perform abortions to have the same facilities as a surgical center. Meanwhile, the case’s big brother, the seven-time-relisted Currier v. Jackson Women’s Health Organization, 14-997, involving a similar Mississippi law, has been sent back to the waiting room.

The Ennead set for argument a rare appeal, Wittman v. Personhuballah, 14-1504, involving is a challenge to the drawing of a Congressional District in Virginia. A three-judge district court twice threw out the plan drawn up by the Virginia legislature for the Third Congressional District (covering parts of Richmond, Norfolk, Newport News, and, oddly, Detroit) after holding that it impermissibly focused on race. While the court worked on a new plan, ten current and past members (sorry, Eric Cantor) of the Virginia delegation of the House of Representatives appealed to the Court. They argued, among other things, that (1) the three-judge panel ran afoul of Shaw v. Reno by failing to make the required finding that race rather than politics predominated in District 3; and (2) that the panel improperly relieved the challengers of their burden of showing that an alternative districting plan, which would have achieved the Virginia General Assembly’s political goals, “is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan.” Appellees, including Gloria Personhuballah, argued that the House members lack standing because none of them resides in or represents the Third District. The Court asked for briefing on standing, and rather than “noting probable jurisdiction” (the usual course in appeals), the Court has postponed consideration of jurisdiction until consideration on the merits, leaving open the possibility of a dismissal on jurisdictional grounds. This case was relisted once, so we get to pad our stats.

We are retiring our favorite acronym. New Hampshire Right to Life v. Department of Health and Human Services, 14-1273, which concerned a Freedom of Information Act request for records related to a government grant to Planned Parenthood, was denied after five relists. As we predicted, NHRtL went home with a consolation prize. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented from the denial of certl. NHRtL now has as many wins as the Cowboys in the NFC East.

Like many old Thanksgiving traditions, the rest of last week’s relists return again. Friedman v. City of Highland Park, 15-133, grabs the newly vacant spot at the head of the table as this Second Amendment challenge to a city ordinance banning assault weapons and high-capacity magazines picks up its fifth relist. The Court has been wary of taking another Second Amendment case, so it will be interesting to see whether a dissent from denial of cert. is on the way. The Court relisted Hernández v. Mesa, 15-118, for a third time. This case involves a U.S. Border Agent who shot a Mexican teenager across the border; the petition asks whether the Fourth Amendment applies to this situation and whether qualified immunity may be granted based on facts unknown to the officer at the time of the incident.

Cross-petitions White v. Wheeler, 14-1372, and Wheeler v. White, 14-10376, sorta notched their third relist this week. We say “sorta” because we don’t always take note of relists occasioned, as this one was, by the need for a brief delay to wait for the record the Court has requested to arrive. But given that this case was already a serial relist, the Court’s call for the record suggests it is taking a very close look. Kentucky claims the Sixth Circuit failed to give the state trial court sufficient deference on a juror bias issue; the prisoner argues the Sixth Circuit erred on evidentiary matters. The request for the record makes this habeas case out of the Sixth Circuit a better candidate than most for summary reversal, but that remains in the realm of speculation.

Rapelje v. Blackston, 15-161, a state-on-top habeas case, got a second relist. It asks whether a Michigan court’s denial of a defendant’s request to introduce two witnesses’ written recantations of their testimony was a Confrontation Clause violation, whether such a statement is extrinsic to the testimony, and – déjà vu all over again – whether the Sixth Circuit was properly deferential to state-court conclusions about the harmlessness of any error.

A pair of last week’s new relists come back for seconds. Triple Canopy, Inc. v. United States ex rel. Badr, 14-1440, which was also rescheduled once, and Universal Health Services, Inc. v. United States ex rel. Escobar, 15-7, involve the theory of implied certification under the False Claims Act (“FCA”). They ask (1) whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, can result in FCA liability under the implied certification theory; and (2) whether implied certification is a valid theory of FCA liability. Triple Canopy also asks (3) whether Federal Rule of Civil Procedure 9(b)’s requirement of pleading fraud with particularity obliges a plaintiff to plead actual reliance by the government on the false statement in question. [John Elwood, who purportedly contributes to this column in various capacities, is counsel to amici supporting the petitioner in Triple Canopy.]

On to our first-time guests. Caetano v. Massachusetts, 14-10078, asks what our Founding Fathers thought of stun guns. Caetano was convicted of possessing an operable stun gun in violation of Massachusetts law. She asks whether the Second Amendment includes stun guns in its definition of “arms” and challenges the Massachusetts statute under the Second and Fourteenth Amendments. Together with the serial relist of Friedman, the fate of Caetano will give our clearest indication yet whether the Court has any appetite to add gloss to District of Columbia v. Heller and McDonald v. City of Chicago.

Taylor v. Yee, 15-169, involves the California Unclaimed Property Law. The law allows the state controller to sell off or destroy the unclaimed property of persons considered “unknown to the State” – which, the petitioners claim, includes such obscure figures as Queen Elizabeth, Vladimir Putin, George W. Bush, Barack Obama, and a majority of the Ninth Circuit panel that decided the case below (um, a recusal issue there?). They claim that California makes no effort to track down the owners of the property even though it has the means to easily do so, and thus deprives owners of property without constitutionally adequate notice. In addition to seeking an outright grant, the petitioners’ counsel – who, while perhaps unknown to California, are well known in legal circles – also ask the Court to at least grant, vacate, and remand (“GVR”) the case in light of Horne v. Department of Agriculture, the “raisin case” from last Term.

Next is Tuomi v. United States, 15-5756, which picks up its first relist after being rescheduled thrice (and being the subject of two supplemental briefs by the petitioner). The case involves a vagueness challenge to the residual clause of the Armed Career Criminal Act sentencing guideline. If that rings a bell for you, it’s either tinnitus or because the Court already invalidated the Armed Career Criminal Act’s residual clause in Johnson v. United States. Since the lower courts did not have a chance to apply Johnson to this case, the Solicitor General has filed a memorandum asking the Court to GVR, but the serial rescheduling and relist make us wonder whether the Court is considering more.

Our final relist, Wearry v. Cain, 14-10008, is a capital case out of Louisiana that the Court has already rescheduled once and called for the record in. Wearry was convicted of brutally murdering a teenage pizza-delivery boy in 1998. The murder had been unsolved for two years until a prisoner came forward and implicated himself, Wearry, and others. Another codefendant testified against Wearry as well. Wearry claims that the state improperly withheld evidence about the informants that would have cast doubt on their stories. He also claims that defense attorneys were constitutionally inadequate in failing to investigate testifying eyewitnesses. His petition asks (1) whether the Louisiana courts erred in failing to find that the state’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland, and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that the petitioner’s attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington.

The Court also newly rescheduled a couple of cases, but we’ll wait for a relist to waste your time about them.

Relist Watch is thankful for both of our readers and wishes everyone a safe and happy Thanksgiving, no matter how screwed up your dinner companions are. See you in December.

Thanks to Bryan Gividen and Dmitry Slavin for compiling and drafting this update.

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15-133

Issue(s): (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected “arms” that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.

(relisted after the October 9, October 16, October 30, November 6, and November 13 Conferences)

 

15-118

Issue(s): (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. CVSG: 03/01/2016.

(relisted after the October 30, November, 6 and November 13 Conferences)

 

15-161

Issue(s): (1) Whether the Sixth Circuit erred when it granted habeas relief based on the theory that respondent was denied the right to confront the two witnesses when the state courts did not allow him to introduce their post-testimony written recantations to impeach their former testimony; (2) whether the Sixth Circuit erred in holding that a written statement recanting former testimony is not “extrinsic” to that testimony and that such statements may be admitted by merely “recit[ing] [them] to the jury” without an authenticating witness; and (3) whether the Sixth Circuit erred in concluding that the state court’s determination that any error was harmless beyond a reasonable doubt was objectively unreasonable, where there was other substantial evidence of respondent’s guilt and the evidence was interlocking and not dependent on the credibility of any single witness.

(relisted after the October 30, November 6, and November 13 Conferences)

 

14-1440

Issue(s): (1) Whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, results in a false claim that violates Section 3729(a)(1)(A) of the False Claims Act under the “implied certification” theory of liability; (2) whether “implied certification” is a valid theory of liability under Section 3729(a)(1)(A) of the False Claims Act; and (3) whether, given Federal Rule of Civil Procedure 9(b)’s requirement that all fraud claims be pleaded with particularity, a “false record or statement” claim under Section 3729(a)(1)(B) of the False Claims Act obliges a plaintiff to plead actual reliance by the government on the false record or statement in question.

(relisted after the November 6 and November 13 Conferences)

 

14-10078

Issue(s): (1) Whether a stun gun is an “arm” within the meaning of the Second Amendment, and (2) whether Massachusetts’s blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.

(relisted after the November 13 Conference)

 

15-169

Issue(s): (1) Whether the Ninth Circuit’s judgment in this case should be granted, vacated, and remanded in light of Horne v. Department of Agriculture, and (2) whether the California Unclaimed Property Law violates the Due Process Clause of the Fourteenth Amendment because it deprives owners of their property without affording constitutionally adequate notice.

(relisted after the November 13 Conference)

 

14-10008

Issue(s): (1) Whether the Louisiana courts erred in failing to find that the State’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that petitioner’s sole attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington.

(relisted after the November 13 Conference)

 

15-5756

Issue(s): Whether the residual clause of the United States Sentencing Guidelines, Section 4B1.2, should be declared void for vagueness.

(relisted after the November 13 Conference)

 

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 20, 2015, 2:24 PM), http://www.scotusblog.com/2015/11/relist-watch-73/