John Elwood (finally) reviews Monday’s relisted and held cases.

Welcome to 2013!  I hope all of you had an enjoyable holiday season – whether spent in the company of loved ones, engaging in recreational pursuits, or just contemplating an exciting new work year.

One thing the Justices apparently didn’t do over the holidays was polish off December’s relists.  Both are back for more exciting relist action.  That includes now-six-time relister Bond v. United States, 12-158, a.k.a. “the case of the hazardous doorknob,” involving Congress’s authority to enact legislation to implement a treaty.  Let me say for the umpteenth time that we should be getting an opinion (or maybe opinions by this point) respecting denial of cert. soon.  Back for its second time in this hallowed blog is City of New York v. Southerland, 12-215, which concerns a Children’s Services case worker and qualified immunity for Section 1983 claims.  (The third possible relist we were wondering about back in December, Kentucky v. King, 12-140—recall the Clerk’s office hadn’t updated the docket—turns out to be a hold.)

That brings us to the dozen (!) new relists, which also explains why this is being posted Thursday.  First up out of the Eleventh Circuit is the dynamic duo Unite Here Local 355 v. Mulhall, 12-99, and Mulhall v. Unite Here Local 355, 12-312.  If those two look familiar from somewhere, that’s because they’ve graced these (e-)pages before.  Unite Here has travelled a long and winding road to be with us here today:  First, it was held, then held again, then rescheduled almost certainly so it could be considered alongside the conditional cross-petition, and now both have been relisted.  Unite Here asks whether an employer and union violate Section 302 of the Labor-Management Relations Act by entering into an agreement under which the employer promises to remain neutral to union organizing in return for the union’s promise to forgo its rights to picket, boycott, and otherwise put pressure on the employer’s business.  If the Court takes up Unite Here, Mulhall has his own Section 302 query he’d like to have answered, to wit, whether the provision saying employers cannot “pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization” reaches “intangible” assistance.

Another double-trouble relist comes out of Justice Breyer’s old judicial stomping grounds:  Chafee v. United States, 12-223, and Pleau v. United States, 12-230.  The pair concerns whether the federal government has the power effectively to override a state governor’s decision not to allow a requested state-prisoner custody transfer under the Interstate Agreement on Detainers Act, 18 U.S.C. App. II.  The en banc First Circuit, with Judges Torruella and Thompson dissenting, blessed the feds’ use of a writ of habeas corpus ad prosequendum, which in non-Little Lord Fauntleroy terms is a writ to produce the prisoner so he can be prosecuted.  (Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Pleau.)

Speaking of habeas, there just couldn’t be a dozen new relists without at least one involving 28 U.S.C. § 2254.  Marshall, Warden v. Rodgers, 12-382, concerns the “clearly established” standard in Section 2254(d), asking whether Faretta v. California satisfies the requirement for a defendant to revoke his prior waiver of counsel at trial and require reappointment of counsel to file a motion for new trial.  But as a practical matter, the odds of Supreme Court review have less to do with the question presented than the fact that it’s a state petition seeking review of a judgment involving Ninth Circuit Judges Reinhardt and Fletcher.  In yet another state-on-top habeas case, Burt v. Titlow, 12-414, the Great (Lakes) State of Michigan says the New Ninth Circuit failed to give sufficient deference under AEDPA to the state court in holding that Titlow’s trial counsel was constitutionally ineffective for allowing him to maintain his claim of innocence, bungled the “reasonable probability” requirement, and misinterpreted Lafler v. Cooper to require resentencing.  And there’s one more habeas case, of the state-on-bottom variety, out of the Fourth Circuit:  Deyton v. Keller, 12-6230.  That case concerns three eighteen- to twenty-year-olds who robbed a Presbyterian Church at gunpoint (during which one of their guns, as predestined, discharged); they now argue it is a clearly established rule that judges cannot take into account their own religious beliefs when sentencing a defendant.  It seems the judge made repeated references to the crime’s spiritual effrontery:  They “didn’t just steal money from people.  [They] took God’s money.”  Arguing that the judge’s religious views may have had something to do with their rather long sentences (fifty-three to seventy-one years), they raise due process and Eighth Amendment challenges to their sentences – and argue that if a judge is going to consult religious scripture in sentencing, it should at least be the New Testament, not the Old.

Calhoun v. United States, 12-6142, out of the Fifth Circuit, concerns a question the prosecutor asked Mr. Calhoun, an African American, in his trial for conspiracy to possess cocaine with intent to sell:  “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money.  Does that tell you – a light bulb doesn’t go off in your head and say, This is a drug deal?”  The Fifth Circuit held that the failure to order a new trial as a result of the inappropriate question was not plain error, reasoning that it failed the third prong because it did not affect Calhoun’s “substantial rights.”

Womack v. United States, 12-6988, also out of the Fifth Circuit, concerns the male half of a husband-and-wife taxpayer-preparation operation tried for aiding and assisting the filing of false tax returns.  In his petition, Mr. Womack contends he was denied an opportunity to present his specific-intent defense to the jury as to “approximately 5,000 other returns” in violation of the Fifth and Sixth Amendment, which would have bolstered his claim to be merely an “unsophisticated tax preparer[] who may have made some mistakes.”  In Sekhar v. United States, 12-357, the managing partner of a venture capital fund started threatening to tell the wife of the New York Comptroller General that he was cheating on her if the Comptroller General did not invest in his fund.  The petition contends that the behavior was merely creepy, and not an attempt to obtain “property” by means of extortion under the Hobbs Act, as the Second Circuit thought.

Over on the civil front, American Trucking Ass’n v. Los Angeles, 11-798, involves whether regulations implementing the Port of Los Angeles’s “Clean Trucks Program” are preempted by the Federal Aviation Administrative Authorization Act or, if you like living dangerously close to the edge of a Microsoft sticky-keys warning, the FAAAA.  The American Trucking Association seeks review of the Ninth Circuit’s decision that the FAAAA did not preempt the program.  This one drew six amicus briefs and a CVSG, so you can bet the Justices are taking a close look.

Bass Pro Outdoor World v. Kelly, 12-407, concerns the constitutionality of a three-digit ratio between punitive and compensatory damages.  Although BMW of North America, Inc. v. Gore set the usual maximum ratio in the single digits, it said a higher number could comport with due process if “a particularly egregious act . . . resulted in only a small amount of economic damages.”  Bass Pro concerned a wrongful-dismissal suit from an employee who claimed he was fired for reporting his supervisor.  Because the plaintiff was an employee at Bass Pro Shops in Missoula, he got a modest $4,300 in lost wages, and, because this is America, he got $2.8 million in punitive damages.  The first round of state-court appeals reduced that to $650,000 (or a 151:1 ratio).  Arthur Miller – the civil procedure guru, not the improbable husband of Marilyn Monroe – is on the petition as Of Counsel.

If you’ve made it this far, congratulations – you’ve already read more than the average American reads in a year.  And you haven’t even made it to the holds yet.  There are seven of them.  There’s a twofer out of the Sunshine State, Kelly v. Florida, 12-6901, and Thompson v. Florida, 12-7238.  Both are just the tip of the metaphorical iceberg, as it seems there are a total of 117 cases in the pipeline involving the Florida Supreme Court’s decision upholding the constitutionality of a state law removing knowledge of the illegal nature of a substance as an element of the crime of possession of an illegal substance (now, it’s an affirmative defense that the defendant was unaware of the nature of the substance).  Expect many more similar holds before the State of Florida files a brief in opposition en masse on January 28.

Cano v. Texas, 12-5813, appears to be a fairly straightforward hold for Boyer v. Louisiana, 11-9953.  Both involve speedy trial claims.  Gonzalez v. Massachusetts, 12-7166, involves a Confrontation Clause claim that is likely being held for Chaidez v. United States, 11-820.  Into that murky chasm called “What is this being held for?” toss John v. United States, 12-5201.  John, a former Citigroup employee who was convicted of access-device fraud for passing account information to her half-brother, asks whether a computer user may be convicted of “exceeding authorized access” to another’s computer, when the user has been afforded unrevoked authorization to view or alter all of the information accessed.  Meirovitz v. United States, 12-7461, goes in the same category.  That case concerns a 28 U.S.C. § 2255 challenge to a crime-of-violence designation under the Sentencing Guidelines.  Maybe it is another hold for Chaidez because it invokes the retroactive application of Johnson v. United States (2010), which Meirovitz claims precludes his second-degree manslaughter conviction in Minnesota from being considered a “crime of violence.”  Or maybe it is a hold for Alleyne v. United States, 11-9335, which also concerns “crimes of violence.”  In any event, it’s peculiar, because the government waived its right to respond, and the Solicitor General is usually very good about spotting cases that may warrant a hold.

But let’s end on a high note, at least in terms of my degree of confidence:  Whirlpool Corp. v. Glazer, 12-322, is almost certainly being held for former six-time relister Comcast Corp. v. Behrend, 11-864.  Like Comcast, Whirlpool asks whether a district court may certify a class action under Fed. R. Civ. P. 23(b)(3) without first resolving factual disputes that bear on the certification requirements.

Please enjoy with our compliments the immense sense of accomplishment normally reserved for people who make it all the way through a Wagner opera awake.  See you back here next week to discuss the fruits of the January 11 Conference, which come to think of it isn’t too far off.

Thanks to Conor McEvily and Eric White for compiling and drafting this update.



Issue(s): Whether an employer and union may violate Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business.

(relisted after the January 4 Conference)



Issue(s): Whether intangible things can be “deliver[ed]” under Section 302(a)(2) of the Labor Management Relations Act, which makes it unlawful for employers “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization.” 29 U.S.C. § 186(a)(2).

(relisted after the January 4 Conference)



Issue(s): Whether, after initiating a custody request for a state prisoner under the Interstate Agreement on Detainers Act, 18 U.S.C. app. 2, the federal government may nullify the state’s exercise of its statutory right to disallow that custody request by resort to a writ of habeas corpus ad prosequendum.

(relisted after the January 4 Conference)


Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.

Issue(s): Whether, when the United States has invoked the Interstate Agreement on Detainers Act and seeks temporary custody of a state prisoner by means of a writ of habeas corpus ad prosequendum, the governor of the sending state – pursuant to the plain language of the Agreement – may disapprove that request.

(relisted after the January 4 Conference)



Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.

(relisted after the January 4 Conference)



Issue(s): (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

(relisted after the January 4 Conference)



Issue(s): Whether 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property,” contains an unexpressed “market participant” exception and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services.

(relisted after the January 4 Conference)



Issue(s): (1) For purposes of federal habeas review, has the U.S. Supreme Court clearly established the rule that due process prohibits a state court judge from taking into account his own religious beliefs in sentencing a defendant? (2) Did the state court judge violate petitioners’ due process rights when the judge told petitioners, following their guilty plea to the robbery at a church, that they had stolen God’s money intended for the establishment of a religious kingdom on earth and then sentenced each of them to 53 to 71 years? (3) Did the sentences of petitioners, who were adolescents without any serious prior record and did not harm anyone in the robbery, violate the Eighth Amendment’s prohibition against cruel and unusual punishment?

(relisted after the January 4 Conference)



Issue(s): (1) Whether it is fundamental or structural error not amenable to meaningful review for the government to resort to racial prejudice or stereotypes as an indicia of guilt; (2) If it is not structural error, is it always plain error for the government to interject racial stereotypes into a trial in order to show the defendant’s guilt?

 (relisted after the January 4 Conference)



Issue(s): Whether petitioner was erroneously denied his Fifth and Sixth Amendment rights to present his defensive theory of lack of specific intent or mens rea.

 (relisted after the January 4 Conference)



Issue(s): Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951 (a)(the Hobbs Act) and 18 U.S.C. § 875(d).

 (relisted after the January 4 Conference)



Issue(s): 1. Given that this Court has said that a single digit maximum ratio between punitive damages and compensatory damages is appropriate in all but the most exceptional of cases, but greater ratios may comport with due process when “a particularly egregious act has resulted in only a small amount of economic damages,” what factors determine whether conduct is “particularly egregious,” whether economic damages are “small” as opposed to nominal, and what upper limits apply once a single digit ratio is exceeded? 2. When economic damages are above nominal, but arguably “small,” does a punitive damages award that bears a triple-digit ratio to the compensatory damages violate Ppetitioner’s due process rights under the Fourteenth Amendment to the United States Constitution?

 (relisted after the January 4 Conference)



Issue(s): (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

(relisted after the November 2, November 9, November 20, November 30, December 7, and January 4 Conferences)



Issue(s): (1) Whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, the qualified immunity question as to a caseworker who removed a child in an investigation mandated by New York Social Services Law § 424 should be whether a reasonable jury could conclude that the child was not at imminent risk of harm or whether a reasonable caseworker in that particular caseworker’s position could have concluded that the child was; (2) whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, a caseworker is entitled to qualified immunity from suit where five judges of the United States Court of Appeals for the Second Circuit agree that there was an absence of clearly established statutory or constitutional rules of which the caseworker should have been aware when he secured a warrant to search a home and removed children at the direction of his superior; and (3) whether, after removing children from a home under the belief that they were abused, and, thereafter, a state court adjudicates a parent to have been so abusive of his children as to deny him further custody, the parent and the children can sue the caseworker who rescued children from further abuse on either substantive or procedural due process grounds.

(relisted after the December 7 and January 4 Conferences)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jan. 10, 2013, 4:13 PM),