John Elwood reviews Monday’s relisted cases.

As October Term 2012 races toward a close, ye faithful readers of Relist Watch – both of you – deserve your own welltimed dénouement.  Sadly, you’ll need to wait just a bit longer, as plenty of business remains for the Court’s final, “mopping-up” Conference Wednesday.

The Justices did make inroads on their to-do list, summarily reversing in the state-on-top Ninth Circuit habeas case Ryan v. Schad, 12-1084, previously relisted twice (that’s quick work for a summary reversal).  And of the Court’s nineish/tennish new grants on Monday, three came in previously relisted cases:  Michigan v. Bay Mills Indian Community, 12-515, the Indian Gaming Regulatory Act case relisted for the first time last week, in which the Solicitor General had recommended a denial; 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, previously relisted twice; and Unite Here Local 355 v. Mulhall, 12-99, which last graced this column back in January, when it was relisted before the Court asked the SG to submit a denial recommendation for it to disregard.  Speaking of CVSGs, the Court added some beach reading to the SG’s summer docket by calling for his views in the twice-relisted 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.

The remainder of last week’s relists are back for another round:  White v. Woodall, 12-794 (the Sixth Circuit state-on-top habeas case now relisted for a sixth time since the Court received the record); Gallow v. Cooper, 12-7516 (the Fifth Circuit state-on-bottom habeas case, now up for its fifth relist); and Harris v. Quinn, 11-681 (the First Amendment challenge to compelled use of a representative to seek greater Medicaid reimbursements, now back for a third relist).  The Justices also relisted for a third time in the 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 (both involving the role of proximate cause in restitution for children depicted in child pornography).

The Court relisted for the first time in Lanus v. United States, 12-862, which asks the Court to overrule Feres v. United States, which held that the Federal Tort Claims Act does not waive the sovereign immunity of the United States for a serviceman’s claims of injury related to service.  Or so says the SG’s brief in opposition—we haven’t been able to track down the petition yet.  The Court also relisted a pair of abortion-related cases from Oklahoma, Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094, and Pruitt v. Nova Health Systems, Inc., 12-1170.  Both seek review of decisions of the Oklahoma Supreme Court invalidating state laws under Planned Parenthood v. Casey.  In Cline, the Oklahoma court struck down a state law limiting the use of Mifepristone (a.k.a. RU-486).  The Oklahoma law sought to limit the drug’s use to the protocol described on FDA-approved drug labels (i.e., no later than forty-nine days’ gestation), cutting back on existing “off-label” prescription by doctors up to sixty-three days’ gestation.  In Pruitt, the Oklahoma court struck down a state law that requires the performance, display, and explanation of a pre-abortion ultrasound.

I have to stop now.  I already used up the one accent mark that I allotted for this Term, and some of these cases are causing me to experience the strong sensation that an event or experience currently occurring has been experienced in the past.  Now take some time to relax with a nice beverage and your favorite halftime snacks and we’ll be back later – maybe much later – as Relist Watch returns with a final wrap-up of the Justices’ end-of-Term Conference.

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


Issue(s): Whether this Court should overrule Feres v. United States and reject its interpretation of the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq., which has been in place for more than 60 years.

(relisted after the June 20 Conference)


Issue(s): Whether the Oklahoma Supreme Court erred in holding – without analysis or discussion – that the Oklahoma law requiring that abortion-inducing drugs be administered according to the protocol described on the drugs’ FDA-approved labels is facially unconstitutional under Planned Parenthood v. Casey. Pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat., Tit. 20, §1601 et seq. (West 2002), respectfully certifies to the Supreme Court of Oklahoma the following question: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.

(relisted after the June 20 Conference)


Issue(s): (1) Whether the Oklahoma Supreme Court erred in declaring the Oklahoma Ultrasound Act, which requires the performance, display, and explanation of a pre-abortion ultrasound, to be facially unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey in light of this Court’s ruling that informational requirements further "the State’s legitimate interest of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed;" (2) whether the Oklahoma Supreme Court erred in interpreting Casey as prohibiting informed consent laws requiring the performance, display and explanation of pre-abortion ultrasounds – an interpretation that directly conflicts with that of the Fifth Circuit in Texas Medical Providers Providing Abortion Services v. Lakey and the interpretation of Casey in the Eighth Circuit’s recent decisions reviewing other informed consent requirements; and (3) whether Casey requires state courts to presume all state regulations of abortion are unconstitutional under federal law, absent controlling authority from this Court.

(relisted after the June 20 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, June 13, and June 20 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, June 13, and June 20 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, June 13, and June 20 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, June 13, and June 20 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, June 13, and June 20 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 25, 2013, 11:05 PM),