John Elwood reviews Monday’s relisted cases.

If the last few days of torrential rains have left you feeling more gloomy than an amorphous blob in need of a serotonin-norepinephrine reuptake inhibitor, Relist Watch is here as usual to cheer you up.

Eventually.  First we have to take care of the bad news.  Yesterday marked the end of the line for three of last week’s relists, as the Court hachaed twice-relisted, generically named Limited Liability Company v. Doe, 12-855, the Federal Arbitration Act case by way of Puerto Rico; cast off into darkness one-timer Scott v. Saint John’s Church in the Wilderness, 12-1077, the Colorado anti-abortion protestor First Amendment challenge; and caused severe prejudice to the petition in Acosta-Ruiz v. United States, 12-6908, the Fifth Circuit harmless-constitutional-error case.   Kinda-sorta-could-be-a relist Ford v. United States, 12-7958, which raised a similar harmless-error issue, fared no better.

If you feel your blue mood receding, it may be because we’re getting in to the good (or at least not bad) news.  The Court keeps coming back for more of White v. Woodall, 12-794, the Sixth Circuit state-on-top habeas case now on for its fourth relist since the complete record arrived, and of third-time-relist (and former hold) Gallow v. Cooper, 12-7516, the Fifth Circuit state-on-bottom habeas case.

There was a flurry of new relist activity Monday.  Perennial dawdlers may recall that Harris v. Quinn, 11-681, graced these pages just over a year ago.  That Seventh Circuit case concerns the constitutionality of an Illinois law requiring personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.  The Court called for the views of the Solicitor General, which, a mere 316 days later, responded that Illinois’s mandatory union arrangement is a-OK under the First Amendment and the petition should be denied.  Petitioner likely hopes the Court will accord the SG’s views due weight and grant cert. anyway.  But even if the Court grants review, respondent Pat Quinn can take comfort in so far avoiding the fate of his predecessors in an office that introductory law school courses teach is the last pre-indictment stage of federal criminal procedure.

Patent lawyers take note of the relist in Limelight Networks, Inc. v. Akamai Technologies, Inc., 12-786, a case concerning liability for inducing patent infringement.  In a dispute over one of Akamai’s patents for the use of multiple servers to store and load different parts of web content in order to speed up how fast websites load (academic if, like me, you have lightning fast Internet), the Federal Circuit held Limelight liable because it performed the first three of four steps of the patented method, and induced its customers to perform the final step (some of whom did).  In its petition, Limelight urges that a party cannot be held liable where no one person performs all the steps of a patented method.  The Court also relisted Akamai Technologies, Inc. v. Limelight Networks, Inc., 12-960, a conditional cross-petition asking the Court to consider the scope of joint infringement liability in the event it takes up Limelight’s petition.

Amy and Vicky, Child Pornography Victims v. U.S. District Court for the Western District of Washington, 12-651, a mandamus case out of the Ninth Circuit, concerns the role of proximate cause in awarding restitution to children depicted in images possessed by those convicted of child pornography.  The Ninth Circuit agreed with the majority of courts of appeals that the restitution statute, 18 U.S.C. § 2259, requires victims to show that their injuries were proximately caused by the defendant’s specific actions.  Wright v. United States, 12-8505, raises a nearly identical issue, only there the Fifth Circuit, in a highly fractured en banc decision, rejected the reading of “[a]ll of [its] sister circuits that have addressed th[e] question,” instead relying on the “plain language” of Section 2259 to hold that child victims need not show proximate cause.  Both cases involve some of the same victims.

So as not to disturb the fundamental rule of nature that as the number of relists approaches four, at least one has to be a habeas case, the Court relisted Ryan v. Schad, 12-1084, yet another state-on-top habeas case out of the Ninth Circuit, and with a long pedigree to boot:  It was relisted in the early days of Relist Watch, and then GVR’d a couple years ago in light of Cullen v. Pinholster.  In its current form, a panel majority consisting of Judges Schroeder and Reinhardt reconsidered the prior denial of Schad’s latest GVR request, and ordered the case to be sent back to the district court for reconsideration of “new evidence” relevant to his ineffective-assistance-of-counsel claim in light of Martinez v. Ryan.  The Ninth denied rehearing en banc, with eight of the court’s more conservative judges dissenting.  Can’t imagine why this has caught the Court’s attention.

Last up is UBS Financial Services Inc. of Puerto Rico v. Union de Empleados de Muelles de Puerto Rico, 12-1208, which with the demise of Limited Liability Company preserves an Enchanted Isle toehold on Relist Watch.  Petitioners argue that that First Circuit applied the wrong standard of review to the district court’s determination that the plaintiffs failed to plead demand futility with particularized facts in their shareholder-derivative suit:  The court of appeals applied de novo review instead of abuse-of-discretion, the standard adopted by the majority of circuits and the Delaware Supreme Court.

Just a handful of Conferences remain until these palliatives end for the summer and you have to confront the emptiness of your existence.  But just remember it could always be worse.

Thanks to Eric White and V&E summer associate Varun Jain for compiling and drafting this update.


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

Issue(s): (1) Whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review.

(relisted after the June 6 Conference)



Issue(s): Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under Section 271(a).

(relisted after the June 6 Conference)



Issue(s): Whether a party may be liable for infringement under either section of the patent infringement statute, 35 U.S.C. §271(a) or § 271(b), where two or more entities join together to perform all of the steps of a process claim.

(relisted after the June 6 Conference)



Issue(s): Whether, when the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, provides that a court “shall order restitution” for a victim of child pornography “in the full amount of the victim’s losses,” which are defined to include several specified categories as well as “any other losses suffered by the victim as a proximate cause of the offense,” a defendant is excused from paying restitution for the itemized loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.

(relisted after the June 6 Conference)



Issue(s): Whether, under the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, (1) the victim’s losses must be proximately caused by the defendant’s offense conduct to qualify for restitution under § 2259; (2) the restitution is limited to those losses caused by the conduct underlying the offense of conviction, as required by Hughey v. United States; (3) the conduct underlying the petitioner’s offense of conviction – possessing at least one of the victim’s images by downloading it from the Internet onto his computer without the victim’s knowledge – satisfy the causal connection required for the imposition of $529,611 in restitution; 18 U.S.C. § 3664(h) authorizes the imposition of joint and several liability for restitution on unrelated defendants in different cases in different judicial districts, and can the mechanism of joint and several liability be used to avoid determining the specific loss caused by the specific possessor of child pornography.

(relisted after the June 6 Conference)



Issue(s): (1) Whether the majority panel opinion order conflicts with Bell v. Thompson by staying the issuance of the Ninth Circuit’s mandate based on its reconsidering a motion it had already denied prior to certiorari review; (2) whether the order erred by applying Martinez v. Ryan rather than Cullen v. Pinholster when the district court did not find a procedural default, but rather considered Schad’s claim of ineffective assistance of counsel on the merits (that the state post-conviction court had denied on the merits), and alternative considered the merits of the claim in light of new evidence first presented in the federal habeas proceedings; (3) whether the order erred by remanding to the district court to reconsider the new evidence that it had already considered.

(relisted after the June 6 Conference)



Issue(s): Whether, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit should have reviewed for abuse of discretion the District Court’s determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors.

(relisted after the June 6 Conference)



Issue(s): Whether a federal court can consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C. § 2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post-conviction counsel.

(relisted after the May 30 and June 6 Conferences)



Issue(s): (1) Whether a proper harmless error analysis may ignore the prejudicial effect of evidence erroneously admitted at a trial and focus only on whether other evidence from the trial is convincing enough to sustain a conviction; (2) Whether a Court of Appeals may override the Government’s express waiver of the harmlessness inquiry and engage in sua sponte harmless error review.

(relisted after the May 30 and June 6 Conferences)



Issue(s): (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

(relisted after the May 16, May 23, and May 30, and June 6 Conferences)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 12, 2013, 11:35 AM),