John Elwood reviews Monday’s relists.

The feeling of disbelief is palpable. Win or lose, you’re lying if you say you expected this. And yet it’s a decision we all must accept, and we must come together as a nation and move on. Sure, I was as surprised as anyone when the court denied cert in OXY USA v. David Schell, 16-107, the one-time relist involving when a court should order vacatur when a case becomes moot on appeal. But I have faith in the system and confidence that what the court does is for the best. [Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in OXY.]

Kidding aside, while you might have lost faith in political pollsters, Relist Watch will never let you down. How can it, when your expectations are already so (justifiably) low? With relists’ 49.2% accuracy rate in forecasting grants, they are nearly as good a predictor as the standard metaphor for random chance. True to form, one relist was granted out of the last conference. Mind you, in this line of work, 50/50 passes for pretty good.

On to the new relists. We have two. First up is White v. Pauly, 16-67, which joins returning relist District of Columbia v. Wesby, 15-1485, among the contentious cases on the court’s Section 1983 docket. In White, three state police officers, following up on a reported road rage incident, approached a home where the suspects were believed to be. The police later testified that they announced to the suspects that they were “State Police” and ordered them to leave the house, and that the suspects shouted back, “We have guns,” before firing two shotgun blasts. When police saw one suspect take aim at an officer, they shot and killed him. The suspect’s estate sued under Section 1983, claiming that the officers engaged in an unreasonable use of deadly force under clearly established law. The district court denied the officers’ summary judgment motion because it found a genuine issue of material fact involving whether the police provided adequate notice that they were police rather than intruders and whether they should have warned the suspect before shooting. The U.S. Court of Appeals for the 10th Circuit affirmed over a dissent, and the full court then denied rehearing en banc over two dissentals and one concurral. The officers claim the 10th Circuit erred in two ways. First, they argue that the 1oth Circuit incorrectly focused on the point of view of the suspects, who purportedly feared they were under attack, rather than the officers’ perspective. Second, the officers contend that the 10th Circuit denied them qualified immunity based on a reading of the constitutional rights at too high a level of generality, and that as a result it held them accountable for rights they could not have been aware of.

The second new relist is Broom v. Ohio, 16-5580, in which the state of Ohio tried and failed to execute Romell Broom for the rape and felony murder of Tryna Middleton. The state attempted, multiple times over two hours, to connect Broom to an IV through his “already bruised and swollen arms” and his ankle to administer the lethal injection cocktail. After two hours, the state gave up, but now it plans to again try again. Broom, seeking review of an unfavorable decision by the Supreme Court of Ohio, argues that the first attempt to execute him was cruel and unusual punishment, and that the appropriate remedy is to bar his future execution; Broom also argues that a second attempt would violate the Eighth Amendment and the double jeopardy clause.

The court is taking tomorrow off as an official day of mourning for the denial of OXY v. Schell, so perhaps we will see movement on these relists as early as this afternoon. Until next time!

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Granted Relists

16-149

Issues: (1) Whether the Federal Employees Health Benefits Act pre-empts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts; and (2) whether FEHBA’s express-pre-emption provision, 5 U.S.C. § 8902(m)(1), which expressly “preempt[s] any State or local law” that would prevent enforcement of “the terms of any contract” between the Office of Personnel Management and a carrier which “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)[,]” violates the supremacy clause.

(relisted after the October 28 conference)

 

Denied Relists

16-107
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): Whether the fact that a pending appeal “played no significant role” in an appellant's voluntary conduct mooting a case, Alvarez v. Smith, is entitled to controlling weight in determining whether a lower court judgment should be vacated, as a majority of courts of appeals have held; or whether a party must make an additional showing of compelling circumstances warranting vacatur, as the 10th Circuit held in this case.

(relisted after the October 28 conference)

 

Returning Relists

16-5247

Issue(s): Whether a state court violates a petitioner's federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26, October 7, October 14, October 28 and November 4 conferences; seems like we should be getting an opinion in this case soon)

 

15-1485

Issue(s): (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28 and November 4 conferences)

 

15-9329

Issue(s): (1) Whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and (2) whether a valid waiver of the right to conflict-free counsel can be found when the trial record contains no mention of a conflict or waiver, and the post-conviction record does not address, let alone satisfy, the constitutionally required elements of a valid waiver.

(relisted after the October 28 and November 4 conferences)

 

New Relists

16-67

Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

(relisted after the November 4 conference)

 

Broom v. Ohio
16-5580

Issue: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4 conference)

 

Thanks to Bryan U. Gividen and Ralph C. Mayrell for compiling and drafting this update.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 10, 2016, 9:19 AM), http://www.scotusblog.com/2016/11/relist-watch-91/