John Elwood reviews Monday’s relisted cases.

As the world gathers at One First Street to watch the Term’s remaining blockbusters indelibly change life as we know it, life in the Relist Watch tidal eddy continues at its normal unrushed pace.

Two of this week’s grants paid their dues in the Relist Watch bush leagues before getting the call to the majors.  Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., 11-1507, the disparate impact Fair Housing Act case, first made an appearance here last fall, before the Court CVSG’edDitto (twice) for Law v. Siegel, 12-5196.

The only new offering left on the beach by this week’s receding tides is Michigan v. Bay Mills Indian Community, 12-515, involving two questions relating to the Indian Gaming Regulatory Act (IGRA):  whether a federal court has jurisdiction to enjoin IGRA violations that take place outside of Indian lands, and whether tribal sovereign immunity bars a state from suing in federal court to enjoin a Tribe from such violations.  The case involves a casino that the Bays Mill Indian Community from Da U.P. opened on land that (Michigan says) is not “Indian land” eligible for gaming.  The Sixth Circuit concluded it lacked jurisdiction to hear Michigan’s IGRA claims, in part because the statute only authorizes suit to enjoin gaming activity “on Indian lands.”  The SG recommended that the Court deny cert., defending the Sixth Circuit’s decision and identifying vehicle problems.  The Water-Winter Wonderland doubtless hopes the SG’s recent string of bad luck continues.

If you find that the Supreme Court’s slew of recent grants and opinions are keeping you so busy that you have time for nothing else, you’re not alone:  last week’s relists are basically in stasis.  Case(s) in point: The Court relisted for the fifth time since receiving the record in White v. Woodall, 12-794, the Sixth Circuit state-on-top habeas case, and for the fourth time in Gallow v. Cooper, 12-7516, the Fifth Circuit state-on-bottom habeas case.  Some might think that serial relists in habeas cases portend imminent action, but we at Relist Watch are far too cautious and measured to engage in such speculation.  Last week’s knot of seven new relists are all back for a second round of seasoning: Harris v. Quinn, 11-681 (the First Amendment challenge to compelled use of a representative to seek greater Medicaid reimbursements); two victim restitution cases, Amy and Vicky, Child Pornography Victims v. U.S. District Court for the Western District of Washington, 12-651, and Wright v. United States, 12-8505 (involving the role of proximate cause in restitution for children depicted in child pornography); the patent infringement case Limelight Networks, Inc. v. Akamai Technologies, Inc., 12-786, and its conditional cross-petition, Akamai Technologies, Inc. v. Limelight Networks, Inc., 12-960; Ryan v. Schad, 12-1084 (another state-on-top Ninth Circuit habeas case); and UBS Financial Services Inc. of Puerto Rico v. Union de Empleados de Muelles de Puerto Rico, 12-1208 (involving demand futility in shareholder-derivative suits).

Thus ends an uncharacteristically brief installment of a column not known for sparing words.  The Justices will gather for their final scheduled Conference of the Term on Thursday (there will likely be an impromptu mop-up Conference after that).   You are tantalizingly close to an entire summer of unmatched productivity without Relist Watch to drag you down.

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


Issue(s): (1) Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

(relisted after the June 13 Conference)


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 and June 13 Conferences)



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 and June 13 Conferences)



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 and June 13 Conferences)



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 and June 13 Conferences)



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 and June 13 Conferences)



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 and June 13 Conferences)



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 and June 13 Conferences)



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 April 12, May 30, June 6, and June 13 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, May 30, June 6, and June 13 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 18, 2013, 9:39 PM),