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Relist (and hold) watch

John Elwood reviews Monday’s relisted and held cases.

Oliver Wendell Holmes once wrote, “Taxes are what we pay for civilized society.”  Which his colleagues took as a sign of approaching dementia.  But they were an uncharitable lot.  Well, if you don’t think you are getting your money’s worth out of your tax payments, think again – the public servants at One First Street N.E. delivered up a fresh batch of relists and holds Monday for our edification and amusement.

Make that relist – singular; there is a recession, you know.  This week’s lone relist, Harmon v. Kimmel, 11-496, may be sending shivers down the spines of Upper East Side renters.  Harmon owns a residential building in Manhattan subject to New York’s rent control law; as a result, his tenants pay rents up to sixty percent below the market rate.  Harmon challenged the law as an unconstitutional taking of private property in violation of the Fifth Amendment.  The district court dismissed the case, and the Second Circuit affirmed, so now Harmon is trying his luck with a court that has been relatively favorable to property owners in recent years.  Rent control laws are nothing new; indeed, New York City has had rent control since the 1940s, when it was first adopted as a temporary wartime measure. (And to you earbud-wearing whippersnappers who consider the Clinton Administration ancient history, that’s World War II I’m talking about.  And when I was a kid we had rotary phones, dadgummit, and the only “app” you could use them for was beating someone to death.).  The relist suggests the case is getting a careful look; perhaps someone who is as fond of outdated pop-culture references as I clearly am wants to write an opinion mentioning such seemingly undeserving (in a financial sense, mind you) past rent-control beneficiaries as Cyndi Lauper ($989/mo on West End Avenue), Mia Farrow ($2,900/mo on Central Park West), and Faye Dunaway ($1,048/mo somewhere on the Upper East Side).

In step with the recent trend, what this week lacks in relists it more than makes up for in holds.  Monday saw eleven of them.  As both the regular readers of this column know, in any bumper crop of holds, there is a high likelihood of holds for the Fair Sentencing Act retroactivity duumvirate, Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721.  They were not disappointed by this week’s offerings:  Akiwowo v. United States, 11-9028; Baxter v. United States, 11-9029; and Benitez v. United States, 11-9142, joined the ever-expanding horde awaiting the outcome of those cases.  Meanwhile, Mercado v. California, 11-7972, is almost certainly being held for Williams v. Illinois, 10-8505, which asks whether it violates the Confrontation Clause for a testifying expert to rely on the results of DNA analysis conducted by non-testifying analysts, not for the truth of the matter asserted, but rather to explain the basis of the expert’s own independent opinions.

Yet another case is on hold for the Ninth Circuit duo Holder v. Gutierrez, 10-1542, and Holder v. Sawyers, 10-1543Holder v. Pimentel-Ornelas, 11-831, comes out of the same circuit and similarly asks whether aliens can avoid deportation if, as minors, they lived with a parent who had been in the country for at least seven years and had been a lawful permanent resident for at least five years.  Al-Alwi v. Obama, 11-7700, is a Guantanamo-detainee challenge.  As I mused back in January, and again in March, the Court may be holding the series of detainee cases so it can consider them together when the briefing is complete in all of them.

Also on the civil side, three cases out of the Third Circuit involving media-ownership rules appear to be on hold for FCC v. Fox, 10-1293, though none of them concern Pacifica or “get[ting] cow !@#$ out of a Prada purse.”  Media General, Inc. v. FCC, 11-691, asks the Court to reconsider its decision in FCC v. National Citizen Committee for Broadcasting, holding that broadcast-ownership restrictions are subject only to rational basis review.  Tribune Company v. FCC, 11-696, asks the Court to rethink the scarcity doctrine enshrined in Red Lion Broadcasting Co. v. FCC, with the petitioners claiming the FCC’s continued restrictions on the cross-ownership of newspapers and broadcast stations violates the First and Fifth Amendments.  And National Association of Broadcasters v. FCC, 11-698, asks whether the Third Circuit properly exercised jurisdiction over the FCC’s media broadcast ownership rules where the D.C. Circuit had previously found those rules arbitrary and capricious.

Finally, moving up the coast from Philly to New York, we get Liu v. Pearson Education, Inc., 11-708, a Second Circuit case that is almost certainly being held for Kirtsaeng v. Wiley & Sons, 11-697, in which the Court granted cert. on Monday.  Both involve application of the Copyright Act to a copy made and legally acquired abroad and then imported into the United States.  The question raised by Liu and Kirtsaeng appears to be the one that divided the Court four to four in last Term’s Costco Wholesale v. Omega, because Justice Kagan recused herself (she had filed a brief as Solicitor General).  Since she will likely cast the deciding vote, all eyes will be on her this time.

Last is Nielson v. Ketchum, 11-680.  In the context of an adoption battle, Nielson asks whether the Cherokee Nation’s membership criteria determine whether a child is a “member” of that tribe for purposes of the Indian Child Welfare Act (ICWA).  A panel of the Tenth Circuit held that it did not, and interpreted the ICWA’s definition of “member” as excluding the child from the tribe and the ICWA’s protections; with four judges dissenting, that court denied en banc review.  I’m not entirely sure what the Court is holding it for; my best guess is to permit it more time to review the record, which it requested from the Tenth Circuit, and which arrived April 5.  I thought they ordinarily relisted under such circumstances, so maybe Nielson is this Term’s mystery hold, a la Beer v. United States, 09-1395.  We will see.

The Court will be back next Monday with another order list.  We’ll see your glazed eyes and dead expression back here then!

Thanks to Eric White for compiling and drafting this update.

Harmon v. Kimmel (relisted after the 4/13 Conference)

Docket: 11-496

Issue(s): (1) Whether a permanent scheme of possessory rent regulation with no foreseeable end exceeds the limits of the noncompensable exercise of the police power established in Block v. Hirsh, Pennsylvania Coal Co. v. Mahon, and other decisions of this Court, which upheld the constitutionality of rent regulation and tenant possession without an owner’s consent, only as a temporary measure to address an “emergency” of limited duration; (2) whether the Fifth Amendment’s protection against government takings bars a substantive due process claim that possessory rent regulation is arbitrary in violation of the Fourteenth Amendment; (3) whether rent regulation that “compel[s] a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy” effects a taking proscribed by the Fifth Amendment as posited in Yee v. City of Escondido; and (4) whether, prior to enactment of possessory rent regulation, the Due Process Clause requires that personal notice or notice by certified mail and a meaningful opportunity to be heard be provided to an owner whose property selectively is made subject to such rent regulation.


Certiorari stage documents

Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (Apr. 18, 2012, 9:25 AM),