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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

Autumn is here, and with it come many changes.  There’s the good kind of change:  Those of us in temperate climates are treated to the beauty of autotrophic chlorophyll degradation.  There’s the not-so-good kind of change:  Soon the sun will set so early that even public-sector employees won’t leave work until after dark.  And there’s the barely tolerable kind of change:  Tonight’s episode of NCIS Los Angeles is being preempted for something called “The Second Presidential Debate,” which I assume must be a pilot of a new show by Aaron Sorkin.  But through all of life’s vicissitudes [note to self: look up “vicissitudes”] there is the stabilizing force of Relist Watch: another Conference, another order list, another week of awkward humor and strained efforts at relevance.  What a comfort.

First, the fate of last week’s relists.  No doubt when you were standing in line bleary-eyed waiting for coffee this morning, the name of this week’s lone cert. grant, Arizona v. The Inter Tribal Council of Arizona, Inc., 12-71, was on the lips of your linemates, prompting the barista to say, “oh yeah, the case reviewing the en banc Ninth Circuit decision invalidating the Arizona law requiring proof of citizenship during voter registration on the grounds it is preempted by the federal National Voter Registration Act of 1993,” to which you replied, “hey, I wanted 2% milk.”  (Who says the level of discourse has declined in this country?)

Contingent-fee lawyers, and those who hope to inherit from them, will want to keep a close eye on last week’s other relist, Lefemine, dba Columbia Christians for Life v. Wideman, 12-168, which is making its second appearance as a relist this week.  Lefemine asks whether a plaintiff who is awarded injunctive and declaratory relief but fails to obtain damages is a prevailing party (and thus gets attorney’s fees); the Fourth Circuit said no.  But the dream ended Monday for Gearren v. McGraw-Hill Cos., Inc., 11-1550, which we speculated was rescheduled so the Court could consider it alongside Gray v. Citigroup, 11-1531.  The Court denied cert. in both, meaning an impatient public will have to wait a little longer to learn whether ERISA’s fiduciary duties allow for a presumption of prudence in favor of offering and holding employer stock in defined contribution retirement plans.  So at least that won’t be the big issue in the presidential election that we all expected.

There were two new relists.  First up is Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., 11-1507, concerning a Fair Housing Act (“FHA”) challenge to the redevelopment of a predominantly Hispanic and African-American part of Mount Holly, New Jersey, near Philadelphia.  The plaintiffs claimed that the area deemed blighted disproportionately included minority households, and that the new projects to be developed would be unaffordable to many of the displaced minority residents.  The Third Circuit found that they made out a prima facie claim of disparate impact under the FHA.  The township’s petition asks the Court to decide whether a disparate impact claim is even available under the FHA.

Nitro-Lift Technologies, LLC v. Howard, 11-1377, concerns whether a state court can avoid enforcing an otherwise-valid arbitration agreement when it determines the underlying contract is against public policy.  Nitro-Lift brought an arbitration proceeding against two former employees alleging breach of the confidentiality / non-compete agreement in their employment contracts.  The employees then brought suit in Oklahoma state court, but Nitro-Lift convinced the trial court to dismiss the suit in light of the arbitration clause.  But the Oklahoma Supreme Court thought otherwise; in a unanimous opinion, it held that “the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement.”   In its petition, Nitro-Lift says the (Okla.) court’s holding flies in the face of the Federal Arbitration Act and a slew of (U.S.) Court cases that say courts must enforce arbitration clauses unless something is wrong with the clause itself.

Over on the hold front, things look downright anemic.  There seems to be just one newbie:  Ryan, Director v. James, 12-11, a state-on-top habeas case out of everyone’s favorite state-on-top habeas court, the Ninth Circuit.  In Ryan, Arizona claims the panel failed to abide by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), as well as Harrington v. Richter and Cullen v. Pinholster, by “treat[ing] AEDPA’s deferential standard as a waivable defense, rather than an inherent restriction on a federal court’s authority.”  Hard to tell what Ryan v. James is being held for; perhaps for Johnson v. Williams, 11-465, another (Ninth Circuit) capital habeas case that raised questions about whether the state court “adjudicated on the merits” a federal constitutional claim, thus triggering AEDPA deference for that court’s resolution.  If you have an alternative theory, drop me a line.

Finally, one hold that had mystified us – Unite Here Local 355 v. Mulhall, 12-99 – has now been rescheduled for the October 26 Conference.  Well, now it appears that the Court was holding the case so it could be considered alongside the conditional cross-petition, Mulhall v. United Local Here 355, 12-312, which is scheduled for that Conference.  Now that we have that mystery cleared up, I can devote my time to figuring out why there are no B-cell batteries.

Thanks to Eric White for compiling and drafting this update.

Lefemine, dba Columbia Christians for Life v. Wideman (relisted after the October 5 and October 12 Conferences)

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


Mount Holly v. Mt. Holly Gardens Citizens in Act, Inc. (relisted after the October 12 Conference)

Docket: 11-1507

Issue(s):  (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and (2) whether, if such claims are cognizable, they should be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test: (a) what the correct test is for determining whether a prima facie case of disparate impact has been made; (b) how the statistical evidence should be evaluated; and (c) what the correct test is for determining when a defendant has satisfied its burden in a disparate impact case.

Certiorari stage documents


Nitro-Lift Technologies, LLC v. Howard (relisted after the October 12 Conference)

Docket: 11-1377

Issue(s):  Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and 45 years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).

Certiorari stage documents

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Oct. 16, 2012, 4:31 PM),