John Elwood reviews Tuesday’s relisted cases.

There are two types of people in D.C.: those who can’t handle a little bit of snow; and those who enjoy ridiculing them. This set us apart from the rest of the country, whose population is likewise divided into two groups: those who loathe Washingtonians for being snow weenies, and those who despise us for all the other things that make us contemptible. D.C. residents, the piles of snow that accumulate this weekend will eventually melt; the scorn your countrymen have heaped upon you is there for good.

On a happier note, this week’s relists suggest that this Term continues to get more interesting by the week (although the next grants seem likely to be argued in October). So sit back and relax, make up an enormous batch of French toast with all the bread and milk you’ve bought, and enjoy this week’s installment of Relist Watch.

The Court declared a snow day for a whopping nine relisted cases – so many that we are going to be rather summary with them. First the Friday grants: Four-time relist Murr v. Wisconsin, 15-214, escaped fate as fodder for a dissent from denial of cert.; the case asks whether two legally distinct but commonly owned contiguous parcels can be combined for regulatory takings analysis under Penn Central Transportation Co. v. New York City’s “parcel as a whole” concept. The other Friday grants had been relisted only once: Manuel v. City of Joliet, 14-9496, involving whether a cause of action for malicious prosecution is cognizable under the Fourth Amendment; Kirtsaeng v. John Wiley & Sons, Inc., 15-375, which concerns the standard for prevailing parties to obtain attorney’s fees under the Copyright Act; Encino Motorcars, LLC v. Navarro, 15-415, regarding whether “service advisors” at a car dealership are “salesmen” who qualify for an exemption from the Fair Labor Standards Act’s maximum-hours requirement; Cuozzo Speed Technologies, LLC v. Lee, 15-446, presenting two questions about review of decisions rendered by the Patent and Trial Appeal Board; Microsoft Corp. v. Baker, 15-457, which asks whether a federal appeals court has jurisdiction to review an order denying a class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice; McDonnell v. United States, 15-474, involving former Virginia governor Bob McDonnell’s challenge to his fraud conviction; and Trinity Lutheran Church of Columbia, Inc. v. Pauley, 15-577, asking whether the exclusion of churches from an otherwise neutral and secular aid program that provides rubber surfaces to playgrounds violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

If one of last week’s relist had to be granted on Tuesday, it was fitting that it should be Dietz v. Bouldin, 15-458; that case asks whether, after a judge has discharged a jury from service and the jurors have left the judge’s presence, the judge may belatedly recall the jurors for further service in the case. Tuesday’s three other grants had not been relisted; chances are you can figure those out yourself.

Not everyone was so lucky: Two one-time relists found themselves buried. We’ll have to wait a while longer to find out whether 8 U.S.C. § 1252(a)(2)(C) divests courts of appeals of jurisdiction to review factual claims challenging the denial of deferral of removal under the Convention Against Torture, because the Court won’t sort that out in Ortiz-Franco v. Lynch, 15-362. And while the Sunflower State won big this week in Kansas v. Carr, it fared poorly on the cert. docket: the Court won’t review Kansas v. Aguirre, 15-374, to determine whether a request to temporarily cease questioning suffices to invoke the Fifth Amendment right against self-incrimination.

The rest of last week’s relists remain snowbound for at least another week. That includes six-time relists Caetano v. Massachusetts, 14-10078 (involving whether a stun gun is an “arm” within the meaning of the Second Amendment); Wearry v. Cain, 14-10008 (presenting questions about Brady and ineffective assistance of counsel); and Taylor v. Yee, 15-169 (addressing whether California laws regarding unclaimed property are a “taking” for Takings Clause purposes). The mystics and the statistics say that a dissent from denial of cert. may be coming (particularly in Caetano), or perhaps a summary reversal (we’re Wearry of waiting for one). But there is still a healthy chance of a grant; just ask Caroline Behrend. Likewise stuck in a ditch is three-time relist Ben-Levi v. Brown, 14-10186 (a Jewish prisoner denied permission to meet and pray with others because prison officials believed there were an insufficient number of people for organized prayer under their understanding of Judaism); Ben-Levi is joined by two-time relists Amgen Inc. v. Harris, 15-278 (whether the “fraud on the market” theory from securities class actions applied in the context of the Employee Retirement Income Security Act of 1974); and James v. City of Boise, 15-493 (whether the Idaho Supreme Court correctly concluded that the U.S. Supreme Court, construing federal law, “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute”).

So with just one short page of throat-clearing, we’re ready to talk about the new relists. The first new relist, Fletcher v. Florida, 15-6075, is hard for us to talk about. Not because it is a capital case, but because we appear to have missed it last week. The docket says the case was first relisted after the January 8 Conference, but we are confident it was just backdated because our crack team misses nothing. Fletcher and a companion were convicted of robbing and killing a woman after a Sunshine State prison escape and the jury recommended the death penalty by an eight-to-four vote. The trial court sentenced Fletcher to death and the Florida Supreme Court affirmed. Fletcher raises several issues, including allegedly improper arguments by the prosecutor, disparate treatment of Fletcher’s co-defendant – and the constitutionality of the Florida capital sentencing scheme, under which the judge rather than the jury finds facts necessary for imposition of the death penalty. It’s been over a week since the Court last ruled on that issue, so perhaps it’s time for another look. Kidding aside, what would appear to be a candidate for a routine order to grant, vacate, and remand (“GVR”) requires a closer look.

Our first actually new relist is another capital case from Florida. Didn’t we do this already? Delmer Smith was convicted of murdering a woman during a home invasion. The jury recommended execution by a twelve-to-zero vote, the court sentenced Smith to death, and the Florida Supreme Court affirmed. Smith’s petition asks whether Florida’s system of having a judge rather than a jury make findings of fact supporting imposition of the death penalty is unconstitutional. Wait, we definitely already did this. Smith’s case has hit a speed bump on the GVR highway.

Maybe our third new relist will actually involve a new issue. The caption V.L. v. E.L., 15-648, sounds like what would happen if Dr. Seuss wrote a book about a messy family situation. V.L. and E.L. were in a committed relationship, during which E.L. gave birth to three kids. V.L. filed an adoption petition to be a second parent to the little Ls, which a Georgia court granted. When the couple later separated, V.L. sought joint custody in an Alabama circuit court. The court granted V.L.’s request, ruling that it was required to honor the Georgia adoption judgment, and the Alabama Court of Civil Appeals affirmed. However, the Alabama Supreme Court reversed, concluding that “the Georgia court erred” in applying Georgia’s adoption statute by allowing V.L., a “non-spouse,” to adopt the children without E.L. relinquishing parental rights; it further ruled that the Georgia court’s error was jurisdictional and therefore that the court’s decision was not entitled to full faith and credit. V.L.’s cert. petition argues that the Alabama Supreme Court made three mistakes in its analysis under the Full Faith and Credit Clause: (1) the Georgia court’s alleged error went to the merits and not to jurisdiction, (2) it failed to honor the presumption that the Georgia Superior Court possessed jurisdiction, and (3) even a state court’s jurisdictional determinations are entitled to full faith and credit of other state’s courts. Now here’s the twist that you definitely never saw coming: E.L. and V.L. are both women. V.L. seeks the Court’s review of what she calls “A.U.D.F.F.F.F.A.C.P.,” which, once you unpack it, is “an unprecedented departure from foundational full faith and credit principles.”   The Court granted V.L. a stay pending resolution of the case, which may shed light on the odds of a grant.

Now it’s time for all of us to hunker down with some chocolate-covered french fries and Malört and prepare to ride out the Snowtorious B.I.G. If we survive, we will see you next week for more Relist Watch – hopefully without saying goodbye to yet another rocker.

Thanks to Brian U. Gividen for compiling this list and Dmitry Slavin for drafting the parts you actually laughed at.



Issue: (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, November 24, December 4, December 11, January 8 and January 15 Conferences)



Issue: (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, November 24, December 4, December 11, January 8 and January 15 Conferences)



Issue: (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, November 24, December 4, December 11, January 8 and January 15 Conferences)



Issue: Whether the Fourth Circuit erred in affirming the denial of relief on the inmate petitioner's complaint alleging that the prison discriminated against him in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act by refusing to permit him to organize a Jewish Bible study group.

(relisted after the December 11, January 8 and January 15 Conferences)



Issue: (1) Whether the decision below conflicts with Fifth Third Bancorp v. Dudenhoeffer, as four members of the court of appeals concluded in dissenting from the denial of rehearing en banc; and (2) whether the Ninth Circuit erred in extending (sua sponte, and without the benefit of briefing) the presumption of indirect class-wide reliance that this Court approved for securities claims in Basic Inc. v. Levinson to respondents’ claims under the Employee Retirement Income Security Act.

(relisted after the December 11, January 8 and January 15 Conferences)



Issue: Whether the Idaho Supreme Court correctly concluded that Hughes v. Rowe and Christiansburg Garment Co. v. EEOC do not bind state courts because this Court “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.”

(relisted after the December 11, January 8 and January 15 Conferences)



Issue: Whether the affirmance by the Supreme Court of the State of Florida of defendant’s conviction for first-degree murder and sentence of death was clearly erroneous and violative of the Constitution of the United States.

(relisted after the January 8 and January 15 Conferences)



Issue: Whether the Full Faith and Credit Clause permits a court to deny recognition to an adoption judgment previously issued by a court from a sister state, based on the forum court’s de novo determination that the issuing court erred in applying its own state’s adoption law.

(relisted after the January 15 Conference)



Issue: Whether Florida’s death penalty statute, which requires a judge rather than a jury to make findings of fact before the death penalty may be imposed, violated petitioner’s Sixth, Eighth, and Fourteenth Amendment rights as set forth in Ring v. Arizona and Apprendi v. New Jersey.

(relisted after the January 15 Conference)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 22, 2016, 11:12 AM),