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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

Break out the Paxil:  we start, as always, with the bad news.  After a mere eight relists, the Fairey tale is over:  the Court denied cert. on Monday in Fairey v. Tucker11-7185, the habeas case involving a defendant convicted in absentia in South Carolina.  I had mused that the case was hanging around because, at least according to the docket, the record was making its way to the Court with all the alacrity of a ’79 Yugo.  But as it happens, it turns out that Justice Sotomayor was using the time trying unsuccessfully to drum up votes for a grant and penning this dissent from the denial of cert.

That leaves three of last week’s relists still in play.  Comcast Corp. v. Behrend11-864, the follow-on to Wal-Mart v. Dukes, involving the standard for class-action certification, is now on its sixth relist.  The serial relist here may portend that an opinion is in the works; whether it is a summary reversal (as Comcast requested) or another dissent from the denial of cert. remains to be seen.  This wouldn’t be happening, of course, if Comcast had just sprung for the extra $26.95 a month to upgrade to Premium Review.  The other recidivists are the two-time relists Mount Soledad Memorial Ass’n v. Trunk, 11-998, and United States v. Trunk, 11-1115, which both concern whether a public war memorial featuring a large cross (and looming over Mitt Romney’s new abode) violates the Establishment Clause.

There are enough contrarians on the Court that we can count on them to be countercyclical.  And, sure enough, as the world appears to go down the tubes, we have an uptick in both the number of reported decisions and relists.  With the four opinions Monday came four new relists – more than we’ve seen in a long, long time.  First up is a biggie:  in American Tradition Partnership Inc. v. Bullock, 11-1179, the highest court in Big Sky Country essentially declared a “Montana exception” to Citizens United based on the state’s political history and circumstances.  The relist may mean that the Justices are considering whether to summarily reverse, to grant review and revisit Citizens United after only two years (as some of the dissenters plainly would like to do), or just deny cert.

With a name like Sebelius v. Auburn Regional Medical Center, 11-1231, you’d think the case involved the constitutionality of the Affordable Care Act.  But instead it concerns 42 U.S.C. § 1395oo(a)(3), a provision governing Medicare reimbursements and recommended bedtime reading for insomniacs.  In his petition, the Solicitor General challenges the Sixth Circuit’s decision to subject to equitable tolling the 180-day statutory time limit for a Medicare provider to file an administrative appeal with the Provider Reimbursement Review Board.  Henderson v. United States, 11-9307, asks whether an error is “plain” for purposes of Federal Rule of Criminal Procedure 52(b) when the law, although unsettled at the time the “error” was committed, becomes clear by the time of appeal.  The district court sentenced Henderson to an above-guidelines term in prison, which, it being the South, would not be notable except for the court’s stated reason for doing so:  to give Henderson a long enough sentence to make him eligible for drug rehabilitation treatment.  Henderson did not timely object.  Soon after, the Court released its opinion in Tapia v. United States (2011), which held that a court cannot “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.”  Henderson appealed, asserting that the sentence constitutes plain error after Tapia, but the Fifth Circuit disagreed.  Another case out of the Fifth Circuit that raises the same issue, Davis v. United States, 11-9422, is on for the June 21 Conference.  The Solicitor General has acquiesced (although he has suggested the Court might also want to hold the cases pending the Fifth Circuit’s reconsideration of the issue en banc).  Looks like the Court may have relisted Henderson so it could consider both cases together and pick the right vehicle, or maybe it’s still mulling the “hold” option.

Our final relist is Martel v. Tuite, 11-1094, a habeas case.  Shockingly, despite being up on review from the über-conservative Ninth Circuit, the state is the petitioner.  The two respondents were both convicted of (unrelated) homicides in California state-court trials at which a witness gave testimony that was determined on appeal to have violated the Confrontation Clause.  Their state-court appeals found the error to have been harmless under Chapman v. California (1967), but on collateral review, the Ninth Circuit granted habeas relief based on its determination that the error was not harmless.  California now challenges those holdings, arguing that 28 U.S.C. § 2254(d) bars a federal court from granting a state prisoner habeas relief without finding that the state court’s harmlessness determination was objectively unreasonable.  In a somewhat unusual move, the Court did not relist this case to the next Conference, but instead relisted it (or perhaps just rescheduled it) for the Long Conference in late September.  Maybe the Court needed the extra time to pore over the four-box record?  Or maybe there are other cases coming down the pike?  Who knows?  There ought to be a blog where someone explains what’s going on.

Monday brought three holds.  The first is mercifully straightforward:  Guillen v. California, 11-8655, is almost certainly on hold for Miller v. Alabama, 11-9646, and Jackson v. Hobbs, 11-9647, which ask whether sentencing a defendant who was a minor when he committed the offense to life in prison without parole constitutes cruel and unusual punishment.  By my count, Guillen is the third hold involving a defendant who was seventeen when he committed the crime for which he was sentenced to life without parole, although both Miller and Jackson involved much-younger fourteen-year-old defendants.  Next up is Soto-Quinones v. United States, 11-10370, a Fifth Circuit case that asks whether the government, after moving for a two-level reduction under the Sentencing Guidelines for acceptance of responsibility for a defendant who pleads guilty, can decline to move for the additional one-level reduction based solely on the fact that the defendant has not waived his right to appeal.  The Fourth Circuit recently created a circuit split by answering that question in the negative.  Under Braxton v. United States (1991), the Court ordinarily lets the Sentencing Commission resolve splits on Guidelines issues, but since this case arguably involves larger questions of the courts’ ability to act in the absence of the government’s motion (or the court’s ability to compel the government to make a motion), this could be a candidate for plenary review.  Soto-Quinones presents an interesting issue, but just why it’s on hold is murky.

Our last hold is Rhodes v. Tucker, 11-9820, a capital habeas case out of the Eleventh Circuit involving, among other things, whether Section 2254(d) allows a court of appeals to decide the merits of a claim under the Anti-Terrorism and Effective Death Penalty Act before deciding whether to grant a certificate of appealability.  Yet again, the reason for the hold in Rhodes is murky because it seems unrelated to any of the pending merits cases.  It’s possible the case is on hold to allow the entire record to come in.  After all, part of the record came in on the day of Conference and a little more trickled in afterward.

We’ve finally come to the end of our long and winding post.  Before signing off, belated birthday greetings (but no bottle of wine) to the dumpster diving, obscure-woodwind-loving relist watch superfan Paul McCartney, who turned seventy on Monday.

The Court will meet again tomorrow for its last scheduled Conference before the Summer Recess, though there should be at least one impromptu mop-up session before the Justices head off.  But our time together is short.  I’m sure that delights you even more than it does me.

Thanks to Victoria Galvez and Eric White for compiling and drafting this update.

Martel  v. Tuite (relisted after 6/14 Conference)

Docket: 11-1094

Issue(s):  Whether a federal court may grant habeas corpus relief to a state prisoner without determining that the state court’s “harmless beyond a reasonable doubt” ruling was objectively unreasonable.

Certiorari stage documents


Am. Tradition P’ship, Inc. v. Bullock (relisted after the 6/14 Conference)

Docket: 11-1179

Issue(s):  Whether Montana is bound by the holding of Citizens United, that a ban on corporate independent political expenditures is a violation of the First Amendment, when the ban applies to state, rather than federal, elections.

Certiorari stage documents


Sebelius v. Auburn Reg’l Med. Ctr. (relisted after the 6/14 Conference)

Docket: 11-1231

Issue(s):  Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary under 42 U.S.C. § 1395oo(a)(3) is subject to equitable tolling.

Certiorari stage documents


Henderson v. United States (relisted after the 6/14 Conference)

Docket: 11-9307

Issue(s):  Whether an error is “plain” for purposes of review under Federal Rule of Criminal Procedure 52(b) when the law is unsettled at the time the error is committed but becomes clear by the time of a subsequent appeal.

Certiorari stage documents


Mount Soledad Mem’l Ass’n v. Trunk (relisted after the 6/7 and 6/14 Conferences)

Docket: 11-998

Issue(s):  Whether the Mount Soledad Veterans Memorial – recognized by Congress as a national veterans memorial that has stood for over fifty years “as a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States” – violates the Establishment Clause because it contains a cross among numerous other secular symbols of patriotism and sacrifice.

Certiorari stage documents


United States v. Trunk (relisted after the 6/7 and 6/14 Conferences)

Docket: 11-1115

Issue(s):  Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause.

Certiorari stage documents


Comcast v. Behrend (relisted after the 5/10, 5/17, 5/24, 5/31, 6/7, and 6/14 Conferences)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jun. 20, 2012, 4:10 PM),