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Relist (and Hold) Watch

John Elwood reviews Tuesday’s relisted and held cases.

Given last week’s bumper crop of relists, it was perhaps unsurprising that three of Friday’s four cert. grants (or six of seven, depending how you count) came in relisted cases.  That group was led off by Bond v. United States, 12-158, involving the scope of Congress’s treaty-implementation power.  That the Court had previously relisted Bond a whopping seven times may suggest that a draft dissent from (or statement respecting) the denial of cert. ultimately shook loose enough votes for a grant.  Bond now unseats Comcast Corp. v. Behrend, 11-864, as the Term’s most-relisted grant.  The Court also granted cert. in the once-relisted troika of Chadbourne & Park LLP v. Troice, 12-79; Willis of Colorado Inc. v. Troice, 12-86; and Proskauer Rose LLP v. Troice, 12-88, all involving the preclusive effect of the Securities Litigation Uniform Standards Act on state-law claims against entities that performed investment-related work for Allen Stanford’s Ponzi scheme.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in these cases.]  Finally, University of Texas Southwestern Medical Center v. Nassar, 12-484, was relisted after the January 11 Conference; it involves 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).

But the weekend’s cold north winds blew no good for several of last week’s relists.  The Court denied cert. without comment in the thrice-relisted City of New York v. Southerland, 12-215, involving qualified immunity for a New York City case worker.  The Court also denied cert. in Deyton v. Keller, 12-6230 (a habeas case in which the Court called for the record back in November), and in Womack v. United States, 12-6988, (involving a tax preparer’s right to prove his defense that he was merely unsophisticated, not a criminal).  Yesterday also marked the end of the road for the First Amendment claims of former Virginia Department of Corrections officers in Brooks v. Arthur, 12-447.

Although we won’t know for sure until it updates the docket, the Court appears to have relisted for a second time in Northwest, Inc. v. Ginsberg, 12-462, involving whether the Airline Deregulation Act of 1978 preempts contract claims relating to a frequent-flyer mile program.  The Court also appears to have relisted for the second time since calling for a response in Marrero v. United States, 12-6355, concerning the proper application of the categorical analysis in Shepard v. United States to whether prior state-law convictions for simple assault and third-degree murder qualify as “crimes of violence.”  Three of last week’s habeas relists are likely back for another go-‘round:  Marshall v. Rodgers, 12-382 (state-on-top), Burt v. Titlow, 12-414 (state-on-top), and Calhoun v. United States, 12-6142 (federal-prisoner-on-top, involving a prosecutor’s inappropriate question).

In contrast to last week’s cornucopia, this week brought only slim pickings on the relist front: two cases, maybe – probably – less.  The Court appears to have relisted in Pearson v. Winston, 12-492, a state-on-top capital habeas case, presenting the question whether a federal court may adjudicate de novo a habeas petitioner’s ineffective assistance of counsel claim, where the petitioner presented new evidence in federal court and the state court denied the claim without an evidentiary hearing.  The district court initially deferred to the state-court decision without holding a hearing, but the Fourth Circuit reversed, remanding for a hearing and de novo adjudication.  There’s a possibility that this is just a hold for Johnson v. Williams, 11-465, which likewise addresses when a claim has been “adjudicated on the merits” for habeas purposes, or (less likely) for the recent grant in Metrish v. Lancaster, 12-547, which involves distinct claims but may provide another lesson in the need to defer to state-court determinations.

The Court may have relisted in Village of Palatine v. Senne, 12-573, which asks whether a municipality is liable under the federal Driver’s Privacy Protection Act (potentially to the tune of $2,500 per ticket issued) for including a recipient’s identifying information on parking tickets affixed to illegally parked vehicles.  Petitioners assert that the en banc Seventh Circuit’s affirmative answer misreads the Act’s exemptions allowing use of personal information in connection with an administrative proceeding or service of process, and interferes with a quintessentially local government function.  There is a decent chance that the Court is simply holding the case for Maracich v. Spears, 12-25, argued January 9, which also concerns the DPPA; the case appears to be only tangentially related, but the Palatine petitioners ask for a Maracich hold as an alternative to a grant, “since the litigation exception at issue in Maracich is found in the same provision as the service of process exception” relevant there.

This week was mercifully quiet on the hold front, with what appear to be only a handful of routine new holds joining the dozens of Florida cases discussed last week.

The Conference won’t meet again until February 15, so you’ll have to resort to another form of sleep aid for almost a month.

Thanks to Eric White and Jeremy Marwell for compiling and drafting this update.

[page]12-492[/page] (relisted after the January 18 Conference)

[page]12-573[/page] (relisted after the January 18 Conference)

[page]12-462[/page] (relisted after the January 11 and January 18 Conferences)

[page]12-6355[/page] (relisted after the January 11 and January 18 Conferences)

[page]12-382[/page] (relisted after the January 4, January 11, and January 18 Conferences)

[page]12-414[/page] (relisted after the January 4, January 11, and January 18 Conferences)

[page]12-6142[/page]  (relisted after the January 4, January 11, and January 18 Conferences)


Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jan. 23, 2013, 2:43 PM),