John Elwood reviews Monday’s relisted cases.

As workers around the country retained their laser-like focus on cutting the deficit and growing the economy, the Justices used their week off to prune the dead wood cluttering the Clerk’s Office and plant some spring seedlings.

Starting with the former, two state-on-top habeas cases from last week’s batch enjoyed varying degrees of success, as the Court denied cert. without comment in Wolfenbarger v. Foster, 12-420, passing up Michigan’s invitation to revisit Wiggins v. Smith in light of Harrington v. Richter.  The Court did, however, GVR in Ryan v. James, 12-11, in light of Johnson v. Williams, after taking a couple of weeks to mull it over.  Last week’s “nominal” relist, Reeves v. United States, 12-8543, was also denied without comment, notwithstanding the two supplemental briefs petitioner filed shortly before the March 1 Conference.

A few usual suspects are still loitering at One First Street:  last week’s newcomer, Sanchez v. United States, 12-335, the Federal Tort Claims Act case involving Vieques, Puerto Rico, is back for a second go-round; Marshall v. Rodgers, 12-382 (a Ninth Circuit state-on-top habeas) is up to a whopping seven relists, which increases the likelihood that an opinion of some sort is in the works.

No sooner had the clerk dusted off the Relist shelves did the Court fill them up with five (count ‘em) new offerings.

First up is a pair of partnership taxation cases involving the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA” to the taxerati).  Both involve the so-called “Son of BOSS” tax shelter – an (unsuccessful) strategy to generate losses to offset taxable income, by increasing the basis of property contributed to a partnership and later sold for a loss.  In United States v. Woods, 12-562, the SG seeks cert. on a question that has occurred to every schoolchild at some point as they lay in the grass pondering the shape of clouds in the spring sky:  whether Section 6662 of the Internal Revenue Code (which prescribes a penalty for an underpayment of income tax that is “attributable to” an overstatement of the taxpayer’s cost basis in property), applies when the underpayment results from a determination that a particular (e.g., Son of BOSS) transaction lacked economic substance because its sole purpose was to generate a tax loss.  Traveling with Woods is Alpha I, LP v. United States, 12-550, which presents a related question about Section 6662 penalties, and a challenge to the tax court’s jurisdiction in a “partnership”-level TEFRA proceeding to make determinations relating to a partner’s transfer of his partnership interest.  The overlap with Woods suggests that Alpha I’s first QP is probably what has attracted the Court’s attention, but it’s possible the Court is considering a plunge into TEFRA’s (murky) jurisdictional waters.  Follow all that?  Me neither.

Next up is Schuette v. Coalition to Defend Affirmative Action, 12-682, which asks whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions.  In Schuette, the en banc Sixth Circuit struck down a Michigan constitutional amendment (approved by fifty-eight percent of Michigan’s voters) that banned affirmative action in public education, employment, and contracting.  That the Court relisted Schuette rather than holding it for Fisher v. University of Texas at Austin, 11-345, may suggest the Justices agree with Michigan that the issues are sufficiently distinct to justify separate treatment – one case (Fisher) involving whether a state may constitutionally consider race in college admissions, and the other (Schuette) involving whether a state may constitutionally prohibit such preferences.

The Court also relisted in Nevada v. Jackson, 12-694, a state-on-top habeas case involving whether (as the Ninth Circuit held, in an opinion by Judge Reinhardt) the defendant’s clearly established constitutional right to present a defense was violated when the trial court barred him from introducing extrinsic evidence to impeach a government witness.

The Court also initially appeared to have relisted in Rambo v. Estate of Rambo, 12-8177, involving a pro se petitioner who is currently a guest of the East Jersey State Prison.  We don’t have the papers yet, but petitioner Roy Rambo Jr. may have presented a claim similar to those in Kaley v. United States, 12-464, granted yesterday and involving constitutional concerns when a criminal defendant is deprived of assets needed to retain counsel of choice.  Dr. Rambo was a New Jersey dentist convicted of killing his wife, Linda Ann.  In the context of an action distributing his marital assets, the good Doctor challenges application of New Jersey’s “Slayer Statute,” which prohibited him from using money from his marital estate to fund his criminal defense.  This morning, the Court called for a response, perhaps indicating it would like respondent’s view about whether Rambo should be held for Kaley, or whether there are less conventional ways of disposing of the petition.

That’s it for now.  If you think the jokes were bad this week, take comfort that I am saving the “A material” for next week, when Court-watchers will have nothing else Court-related competing for their attention.  At least not that I’ve heard about.

Thanks to Jeremy Marwell for compiling and drafting this update.


Issue(s): (1) Whether Section 6662 of the Internal Revenue Code, which prescribes a penalty for an underpayment of federal income tax that is “attributable to” an overstatement of basis in property, applies to an un­derpayment resulting from a determination that a transaction lacks economic substance because the sole purpose of the transaction was to generate a tax loss by artificially inflating the taxpayer’s basis in property; and (2) whether the district court had jurisdiction in this case under 26 U.S.C. § 6226 to consider the substantial valuation misstatement penalty.

(relisted after the March 15 Conference)



Issue(s): 1) Whether the penalty under 26 U.S.C. § 6662 for an overvaluation misstatement is applicable to any underpayment of tax that may result from adjustments made by the IRS in a notice of Final Partnership Administrative Adjustment (“FPAA”) issued to a partnership, when that partnership concedes the adjustments asserted in the FPAA on a ground that is separate from valuation. 2) Whether a court has jurisdiction in a partnership-level proceeding under the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) (i.e., 26 U.S.C. §§ 6221—6233) to determine whether a partner’s transfer of his or her partnership interest was a sham, based on the possibility that the trial court might make findings not urged by either party but that would support the court’s jurisdiction.

(relisted after the March 15 Conference)


Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents.

Issue(s): Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. (Kagan, J., recused.)

(relisted after the March 15 Conference)



Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

(relisted after the March 15 Conference)



Issue(s): Whether, as the First Circuit alone has held, a lawsuit asserting claims arising out of federal employees’ conduct that is tortious is nevertheless implicitly exempt from the Federal Tort Claims Act (“FTCA”), which provides that the United States may be sued and shall be liable for the torts of federal employees acting within the scope of their employment, because the conduct also violates a federal statute, regulation, or policy that does not itself authorize suits for damages.

(relisted after the March 1 and March 15 Conferences)



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, January 11, January 18, February 15, February 22, March 1, and March 15 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Mar. 19, 2013, 6:38 PM),