John Elwood reviews Monday’s relisted cases.

Despite having had nothing particularly profound or of any human interest to dwell on over the past week, the Court did not make much progress clearing out the familiar relists.  Four old friends from last week’s episode are back for another twirl on the merry-go-round:  the Ninth Circuit state-on-top habeas case Nevada v. Jackson, 12-694 (third relist since the record arrived); the Ninth Circuit state-on-top habeas case Chappell v. Phillips, 12-544 and its fellow traveler Phillips v. Chappell, 12-5890 (ditto); and the Seventh Circuit Establishment Clause case Elmbrook School District v. Doe, 12-755 (fourth relist).  I’ll bet all my royalties from writing this column that an opinion of some sort is in the works in Elmbrook — and, for that matter, the Phillips cases.  Last week’s three new (to us) relists appear to be on ice temporarily:  the Court called for a response in Hammond v. Sheets, 12-691, and appears to be holding Strouth v. Colson, 12-7720, and Gallow v. Cooper, 12-7516, in which it already had briefs in opposition, perhaps until Hammond catches up.

We buried the lede.  The highest-profile relist was in Alabama v. United States, 12-884, in which the Heart of Dixie dares to maintain its rights . . . to criminalize the act of concealing, harboring, encouraging to remain, or transporting aliens present in the United States “in violation of federal law.”  In light of Arizona v. United States, the Eleventh Circuit held that these provisions from Alabama’s “Taxpayer and Citizen Protection Act” are preempted by federal law.  Alabama seeks to revisit that determination, arguing that ongoing “disputes between the federal government and the States over illegal immigration” warrant returning to this issue.

Finally, the Court relisted in two follow-on cases to Genesis HealthCare Corp. v. Symczyk, decided on April 16:  Convergent Outsourcing, Inc. v. Zinni, 12-744, and Cerdant, Inc. v. DHL Express (USA), Inc., 12-747.  In Genesis HealthCare, the Court assumed without deciding (while acknowledging a circuit split on the issue) that an unaccepted Rule 68 offer of judgment that fully satisfies a plaintiff’s claim is sufficient to render the claim moot.  Convergent Outsourcing presents a variant on that question:  whether an unaccepted settlement offer for full relief that does not include an offer of judgment moots a claim.  Cerdant, in turn, asks whether a Rule 23 class representative’s voluntary acceptance of a Rule 68 offer of judgment in excess of its potential individual recovery at trial, but that makes no reference to claims by a putative class, moots the action and prevents appellate review of an earlier denial of class certification.  Given that Convergent submitted a supplemental brief shortly before the April 19 Conference, it’s possible the Justices need more time to consider the appropriate disposition in light of Genesis HealthCare—or perhaps there is interest in resolving the question on which the Court already recognized a split.

The Justices will be in Conference again this Friday, so be sure to stop by next week so you won’t miss a scintillating bit of next week’s signature blend of strained humor and minimal insight.

Thanks to Conor McEvily and Jeremy Marwell for compiling and drafting this update.


Issue(s): Whether 8 U.S.C. §1324, which prohibits concealing or harboring unlawfully present aliens, encouraging or inducing them to come into or reside in the United States, or transporting them in furtherance of their unlawful presence, impliedly and facially preempts state laws, such as ALA. CODE §31-13-13, prohibiting a state’s residents from: (a) concealing or harboring aliens who are present in the United States in violation of federal law; (b) encouraging or inducing aliens to enter into or reside in the state, when their entry or residence would violate federal law; or (c) transporting unlawfully present aliens within the state in furtherance of their unlawful presence.

(relisted after the April 19 Conference)



Issue(s): Does an offer to provide a plaintiff with all of the relief he has requested, including more than the legal amount of damages plus costs and reasonable attorney’s fees, fail to moot the underlying claim because the defendant has not also offered to agree to the entry of a judgment against it?

(relisted after the April 19 Conference)



Issue(s): Is a class representative in a putative class action faced with a Rule 68 offer of judgment in excess of its potential recovery that makes no reference to class claims required to reject said offer, proceed to trial, and bear all of the costs of continuing litigation in order to preserve its right to appellate review of a denial of class certification?

(relisted after the April 19 Conference)



Issue(s): Whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result.

(relisted after the March 29, April 12, and April 19 Conferences)



Issue(s): (1) In Strickland v. Washington, this Court held there exists a Sixth Amendment constitutional right to effective assistance of counsel at all stages of criminal trials, including the obligation to investigate before selecting a defense. In Cullen v. Pinholster, this Court reiterated Strickland controls for trial counsel’s obligation to investigate all phase of a capital case. Did the Ninth Circuit err in creating a new law of the Circuit that held, pursuant to the Ninth’s reading of Pinholster, trial counsel has no constitutional duty to conduct any investigation into police reports, ballistics, and crime scene photos before selecting a defense? (2)This Court has established a clear “law of the case doctrine.” In 2001 the Ninth Circuit held Phillips’s right to effective assistance of counsel, within the meaning of Strickland, had been violated because counsel conducted no investigation before selecting a defense. In its latest decision the Ninth Circuit found it was “compelled” to overturn the 2001 decision in light of this Court’s ruling in Pinholster that the Sixth Amendment does no impose a “constitutional duty to investigate” in capital cases. Was it a violation of Phillips’s constitutionally protected right to Due Process under the Fourteenth Amendment when the Ninth Circuit declined to follow this Court’s law of the case doctrine?

(relisted after the March 29, April 12, and April 19 Conferences)



Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

(relisted after the March 22, March 29, April 12, and April 19 Conferences)



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, March 22, March 29, April 12, and April 19 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Apr. 23, 2013, 3:43 PM),