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Relist (and Hold) Watch

John Elwood reviews Tuesday’s relisted and held cases.

Last week’s relists were a real breeding ground for talent, like John Mayall’s Bluesbreakers, or the Yardbirds, or (ahem!) the New Mickey Mouse Club.

Of the Court’s seven grants from the October 5 Conference, a slim majority (four) were in relisted cases:  Bowman v. Monsanto Co., 11-796 (involving whether there is an exception to the doctrine of patent exhaustion for self-replicating technologies); Koontz v. St. Johns River Water Management District, 11-1447 (regulatory takings); Alleyne v. United States, 11-9335 (whether to overrule Harris v. United States); and Boyer v. Louisiana, 11-9953 (whether a state’s delay in paying for defense counsel in a murder case should count for purposes of the right to a speedy trial).  (Part credit:  The Court also granted cert. in Gunn v. Minton, 11-1118, which it had previously rescheduled from the Long Conference to October 5, presumably to consider together with Byrne v. Wood, 11-1497, which raises the same issue, and which the Court now appears to be holding for Gunn.)  The Court also CVSG’d in the relisted Lawson v. FMR LLC, 12-3, addressing whether employees of contractors and subcontractors of a publicly traded company are protected from retaliation.  And the Court called for a response from the SG in Dotson v. United States, 11-9873, which the Court presumably will hold pending the outcome of Alleyne, which presents the same question.

The rest of the Long Conference’s budding relists went the way of Hokey Pokey Woman #5.  Even, notably, Chevron v. Naranjo, 11-1428, the petition involving the scope of the Declaratory Judgment Act, where the Court denied cert. without comment despite an all-star roster of counsel and amici; and Diaz v. Wyoming, 11-9831, where the Justices may have discerned a procedural defect or other reason not to hold the case for Chaidez v. United States, 11-820.

Having cleared the decks from the Long Conference, the Court relisted in only two new cases.  First up is Arizona v. The Inter Tribal Council of Arizona, Inc., 12-71, which involves a challenge to recent amendments to Arizona’s voter registration provisions requiring voters to present specified forms of ID at the polls and requiring officials to reject voter applications not accompanied by “satisfactory evidence of United States citizenship.”  The en banc Ninth Circuit upheld the ID requirement but concluded that the federal National Voter Registration Act of 1993 preempts the state’s registration provision with respect to voters using the federal registration form.  Arizona seeks cert. on the latter ruling, arguing that the Ninth Circuit created a “new, heightened preemption test” contrary to Supreme Court precedent.

Second is an attorney’s fees case, Lefemine, dba Columbia Christians for Life v. Wideman, 12-168.  There, a pro-life group sued employees of a South Carolina sheriff’s office for First Amendment violations after being required to take down graphic signs displayed at a roadside protest.  The district court granted the defendants qualified immunity, awarded the plaintiffs injunctive and declaratory relief, and denied attorney’s fees.  The petition asks whether a plaintiff who has obtained a permanent injunction and declaratory relief is a prevailing party and alleges that the Fourth Circuit has placed itself on the short end of a twelve-to-one circuit split.

On to the hold front.  The Court still appears to be holding the gay marriage/Defense of Marriage Act (DOMA)/DOMA-like cases discussed in last week’s post, as well as the mysterious Unite Here Local 355 v. Mulhall, 12-99.  Confirming our suspicion last week, the Court has scheduled Argueta v. United States, 11-9981, involving the Sixth Amendment implications of anonymous witnesses, for the October 26 Conference, presumably so it can be considered alongside two cases at the Conference presenting the same issue:  Elashi v. United States, 11-1390, and El-Mezain v. United States, 11-10437.

The Court appears to be holding Lyons v. Mitchell, 11-9843, for Johnson v. Williams, 11-465, argued on October 3 and addressing whether a habeas petitioner’s claim is “adjudicated on the merits” if the state court denied relief in an explained decision but did not expressly acknowledge the federal-law basis for the claim.  As noted above, Byrne v. Wood, 11-1497, appears to be a routine hold for Gunn v. Minton, 11-1118.

At the risk of mission creep, there were some machinations on the docket ahead of the October 5 Conference that don’t count as either relists or holds but that warrant brief mention.  On September 20, the Court called for a response (from, among others, the SG) in Roe v. United States, 12-112Roe presents several questions arising from a district court’s decision to seal the entire case file in a criminal prosecution of a scheme to defraud investors.  Among other things, the petitioners assert that the Second Circuit’s practice of sealing entire criminal case files conflicts with the approach in other circuits, violates federal victims’ rights laws (e.g., by not notifying victims of the proceedings), allows the defendant to avoid paying restitution, and is facially unconstitutional.  The Reporters Committee for Freedom of the Press and the National Organization for Victim Assistance filed amicus curiae briefs supporting the petitioner.

Also on September 20, the Court called for a response in United States v. Davila, 12-167, in which the SG argues the Eleventh Circuit erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant.  This case will get serious attention when the brief in opposition arrives.

On September 26, the Court rescheduled Gearren v. McGraw-Hill Cos., Inc., 11-1550, for the October 12 Conference.  Gearren presents the age-old question whether ERISA’s fiduciary duties allow for a presumption of prudence in favor of offering and holding employer stock in defined contribution retirement plans, such that plan fiduciaries need not protect participants from foreseeable losses unless the employer is in a “dire situation,” and whether that presumption may be applied in a motion to dismiss.  Seems likely the Court bumped Gearren so it could consider the case together with Gray v. Citigroup, 11-1531, which presents a similar issue, just with amicus briefs.  Either that or it fell asleep while reading the question presented and drove into a ditch.

On October 3, the Court rescheduled PPL Corp. and Subsidiaries v. Commissioner of Internal Revenue, 12-43, for the October 26 Conference.  PPL involves the standard for determining whether a U.S. taxpayer is entitled to a credit for foreign taxes (there, the United Kingdom’s “windfall tax” on excess profits).  The Court probably wants to consider PPL with the SG’s petition for cert. on what appears to be the same issue in Commissioner of Internal Revenue v. Entergy, 12-277.

One last case worth watching that was originally on for the October 5 docket is Sparks v. Texas, 12-5030, a capital case from Texas with an unusual fact pattern.  The petitioner claims he is entitled to a new trial based on uncontested evidence that a bailiff at the punishment phase replaced his normal uniform with all-black clothing and a black necktie with an embroidered image of a white syringe to show his support for the death penalty in Sparks’s case.  Texas concedes the bailiff wore the tie in support of the death penalty, but says Sparks failed to show prejudice after being allowed a state-court hearing on the issue.  The Court called for the record back on September 24, and it arrived on October 2.  The docket doesn’t yet reflect any further action, suggesting the Court is still chewing on this one.  As is abundantly clear from Wellons v. Hall (a capital case in which the Court summarily vacated for further consideration of allegations the jurors gave the trial judge and bailiff sex-themed “gag gifts”), the Court is pretty serious about ensuring that capital proceedings are “conducted with dignity and respect” (Wellons), so it seems likely they’re taking a close look at this one.

That’s enough blather.  For now.  Just another eight months and ~sixteen days of this and you can have the summer off.

Thanks to Jeremy Marwell for compiling and drafting this update.

Arizona v. The Inter Tribal Council of Arizona, Inc. (relisted after the October 5 Conference)

Docket: 12-71

Issue(s):  (1) Whether the Ninth Circuit erred in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and (2) whether the Ninth Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Certiorari stage documents

Lefemine, dba Columbia Christians for Life v. Wideman (relisted after the October 5 Conference)

Docket: 12-168

Issue(s):  (1) Did the Fourth Circuit err when it rejected the rule of Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources by holding that a plaintiff who has obtained a permanent injunction and declaratory relief on the merits of his claim has nonetheless not prevailed? (2) Did the Fourth Circuit err when it promulgated its new rule that the determination of whether a plaintiff has prevailed will now be subject to abuse of discretion review?

Certiorari stage documents

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Oct. 11, 2012, 1:50 PM),