John Elwood reviews Monday’s relisted and held cases.

Of last week’s fourteen – count ‘em, fourteen – relists, two took up residence in the Pantheon of the Chosen:  On Friday, the Court granted cert. in American Trucking Ass’ns v. Los Angeles, 11-798, reviewing the Ninth Circuit’s decision that the Port of Los Angeles’s “Clean Trucks Program” is not preempted by federal legislation, and Sekhar v. United States, 12-357, in which the Second Circuit held that the New York Comptroller General’s investment recommendation was “property” that could be extorted for purposes of the Hobbs Act.  Meanwhile, resting in the Pantheon’s antechamber are the mirror-image duo Unite Here Local 355 v. Mulhall, 12-99, and Mulhall v. Unite Here Local 355, 12-312; the Court has called for the views of the Solicitor General on (among other things) whether an employer and a union can enter into an agreement in which the employer promises to remain neutral in any union organizing in return for the union’s promise to forego its rights to picket, boycott, make sarcastic comments about the boss’s plaid pants, and otherwise put pressure on said employer.  But not everybody had a happy ending.  Bad news for purveyors of metal-flake fiberglass fishing boats as the Court denied cert in Bass Pro Outdoor World LLC v. Kelly, 12-407, leaving in place the 151:1 ratio punitive-damages award – although as respondents seek to enforce the judgment, it might represent a buying opportunity for lightly used stuffed Elk.  What’s the present tense of “Chafed”?  I’m guessing “Chafee,” as in Chafee v. United States, 12-223, since the Court denied cert. on the Ocean State governor’s Interstate Agreement on Detainers petition and its companion, Pleau v. United States, 12-230.

But it was a banner week of more-of-the-same, as most of last week’s relists are back for a return appearance, including seven-time relister Carol Anne “there’s a dissent coming any day” Bond v. United States, 12-158 (Congress’s treaty-implementation power), and three-timer City of New York v. Southerland, 12-215 (NYC case worker qualified immunity).  Also back are all of last week’s habeas relists:  Marshall v. Rodgers, 12-382, (state on top), Deyton v. Keller, Jr., 12-6230, (state on bottom), and Burt v. Titlow, 12-414, (state on top, bottom, and some middle; no, wait – just top).  Plus, the two Fifth Circuit cases, Calhoun v. United States, 12-6142 (involving a prosecutor’s inappropriate question) and Womack v. United States, 12-6988 (involving the tax preparer’s right to prove his “ineptitude” defense).

If we’re in an age of austerity, the Supreme Court hasn’t heard yet.  To that huge pile of returning relists, the Court has added another seven (!) cases.  The first three — Chadbourne & Park LLP v. Troice, 12-79; Willis of Colorado Inc. v. Troice, 12-86; Proskauer Rose LLP v. Troice, 12-88 — all arise from former Antiguan knight Allen Stanford’s multi-billion-dollar Ponzi scheme.  The Fifth Circuit held that SLUSA, the Securities Litigation Uniform Standards Act — not to be confused with SLUSSA, the support group for chronically-fatigued Swedes — did not preclude state-law claims against various entities that did investment-related work for Stanford’s companies.  The Court asked the Solicitor General to weigh in, and in October, he recommended the Court deny cert. because, “[a]lthough the Fifth Circuit erred in its application of SLUSA’s preclusion provision,” the case “turned on an unusual fact pattern” and didn’t implicate a circuit split.

Also out of the Fifth, University of Texas Southwestern Medical Center v. Nassar, 12-484, asks whether but-for causation is a necessary element of the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).  The Fifth Circuit panel held that a “mixed motive” was enough, and although six judges voted for en banc review, that wasn’t enough, because nine voted against.

Proving that people will go to great lengths for extra legroom, the petitioner in Northwest, Inc. v. Ginsberg, 12-462, sued Northwest Airlines for booting him from its WorldPerks Platinum Elite frequent flier program, alleging the airline breached its contractual obligations and violated Minnesota’s implied covenant of good faith and fair dealing.  The trial court dismissed the suit, in part because it found the implied covenant preempted by the Airline Deregulation Act of 1978.  Not so, said the Ninth Circuit, in an opinion having nothing whatever to do with any desire to upgrade to first class for the flight out to the Hawaii sitting, concluding that the Act’s focus on preempting state laws with “force and effect of law related to a price, route, or service of an air carrier” (49 U.S.C. § 41713(b)) did not cover frequent flier miles.

Brooks v. Arthur, 12-447, concerns two former Virginia Department of Corrections officers who brought First Amendment claims stemming from their termination (for alleged work deficiencies); the Fourth Circuit held that because the dispute concerned complaints about the “employee’s own duties” filed in an “internal grievance procedure,” it was not a matter of public concern.  Last but not least, Marrero v. United States, 12-6355, concerns the proper application of the categorical analysis in Shepard v. United States in determining whether Marrero’s earlier convictions for simple assault and third-degree murder qualify as “crimes of violence.”

On the hold front, the Court has dealt us twenty-seven holds, and let me tell you, if you are trying to increase page views, do not use the phrase “twenty-seven holds” – which, based on scientific testing, apparently is HTML code that makes browsers close.  Lucas v. United States, 11-1536, and Dorsey v. United States, 12-6571, are 18 U.S.C. § 924(c)(1)(A) cases, and likely holds for Alleyne v. United States, 11-9335, which seeks to revisit the Court’s conclusion in Harris v. United States that judges (and not just juries) can decide facts necessary to impose mandatory-minimum sentences.   The facts in Mubdi v. United States, 12-7398, involve both a drug-sniffing dog (and thus in theory could be a hold for Florida v. Harris, 11-817) and a mandatory minimum sentence based on judicial factfinding (and thus could be a hold for Alleyne).  We suspect the latter.  Mathur v. United States, 12-439, involves the retroactivity of Padilla v. Kentucky (holding that the Sixth Amendment right to counsel requires a defense attorney to tell his client whether a plea agreement might result in deportation) and thus is a likely hold for Chaidez v. United States, 11-820Brooks v. Minnesota, 12-478, which involves the application of the Fourth Amendment’s exigent-circumstances exception to the warrantless collection of urine for drug and alcohol testing, is a likely hold for Missouri v. McNeely, 11-1425, argued last week, involving the warrantless taking of blood samples from drunk drivers under that theory.  McCormick v. Idaho Dep’t of Health and Welfare, 12-565, concerns preemption of state laws under lien provisions in the Medicaid Act, and thus is most likely a hold for Delia v. E.M.A., 12-98.

Finally, the remaining twenty-one holds (Adams v. Florida, 12-7124; Wilkerson v. Florida, 12-7237; Hurley v. Florida, 12-7316; Golden v. Florida, 12-7317; Deneus v. Florida, 12-7318; McComas v. Florida, 12-7349; Gibson v. Florida, 12-7350; Wilson v. Florida, 12-7351; Walton v. Florida, 12-7353; Gawronski v. Florida, 12-7354; Miller v. Florida, 12-7355; Bowman v. Florida, 12-7356; Williams v. Florida, 12-7357; Niles v. Florida, 12-7362; Barton v. Florida, 12-7364; Ryan v. Florida, 12-7376; Fijnje v. Florida, 12-7402; Gionfriddo v. Florida, 12-7406; George v. Florida, 12-7409; Graham v. Florida, 12-7422; and Jackson v. Florida, 12-7321) are another installment on the 117 cases set to come out of the Catatonic State challenging a law that made knowledge of the illegal nature of a substance an affirmative defense rather than an element of the crime.  As mentioned in last week’s post, expect more holds before and immediately after the State of Florida files a mega-brief in opposition January 28.

Thus ends another overlong and undergood installment of Relist (and Hold) Watch.  The Court is meeting this Friday, but the order list won’t come down until after the MLK Holiday.  In the meantime, good luck today choosing among all the parties celebrating the 130th anniversary of the Pendleton Civil Service Reform Act, the 94th anniversary of the ratification of prohibition, and the 22d anniversary of the announcement of a New World Order.

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

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

Issue(s): (1) Whether the Securities Litigation Uniform Standards Act (SLUSA) precludes a state-law class action alleging a scheme of fraud that involves misrepresentations about transactions in SLUSA-covered securities; and (2) whether SLUSA precludes class actions asserting that defendants aided and abetted SLUSA-covered securities fraud when the defendants themselves did not make misrepresentations about the purchase or sale of SLUSA-covered securities.

(relisted after the January 11 Conference)

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

Issue(s): Whether a covered state law class action complaint that unquestionably alleges “a” misrepresentation “in connection with” the purchase or sale of a security covered by the Securities Litigation Uniform Standards Act nonetheless can escape the application of SLUSA by including other allegations that are farther removed from a covered securities transaction.

(relisted after the January 11 Conference)

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

Issue(s): (1) Whether the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. §§ 77p(b), 78bb(f)(1), prohibits private class actions based on state law only where the alleged purchase or sale of a covered security is “more than tangentially related” to the “heart, crux or gravamen” of the alleged fraud; and (2) whether the SLUSA precludes a class action in which the defendant is sued for aiding and abetting fraud, but a non-party, rather than the defendant, made the only alleged misrepresentation in connection with a covered securities transaction.

(relisted after the January 11 Conference)


Issue(s): Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

(relisted after the January 11 Conference)


Issue(s): Whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens ) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

(relisted after the January 11 Conference)

(relisted after the January 11 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 and January 11 Conferences)


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 and January 11 Conferences)


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 and January 11 Conferences)


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 and January 11 Conferences)


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)
12-6355 (relisted after the January 11 Conference)


Issue(s): (1) Whether this court should grant certiorari to resolve the circuit split regarding what a sentencing court can consider when applying the modified categorical Approach? Specifically, some courts of appeals have held that sentencing courts can consider charging documents and plea colloquies only to determine which crime the defendant committed when his prior offense Occurred. Others have held that sentencing courts can also consider those documents to determine how the defendant committed the prior offense and (2) whether after the Supreme Court’s decision in Begay v. United States, the question of whether a crime is a crime of violence depends upon whether the elements require Conduct which is “violent, purposeful, and aggressive.” Should the analysis of Begay apply, even if an offense is enumerated in application note 1 to U.S.S.G. § 4b1.2, the definition section of the career offender guidelines?

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jan. 16, 2013, 1:37 PM),