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Relist watch

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.

[page]12-884[/page] (relisted after the April 19 Conference)


[page]12-744[/page] (relisted after the April 19 Conference)


[page]12-747[/page] (relisted after the April 19 Conference)


[page]12-544[/page] (relisted after the March 29, April 12, and April 19 Conferences)


[page]12-5890[/page] (relisted after the March 29, April 12, and April 19 Conferences)


[page]12-755[/page] (relisted after the March 22, March 29, April 12, and April 19 Conferences)


[page]12-694[/page] (relisted after the March 15, March 22, March 29, April 12, and April 19 Conferences)

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