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Relist Watch

John Elwood reviews Tuesday’s relisted cases.

As the heart of Washington comes back to life this morning, the Watch remains your constant companion in these tumultuous times.  Never essential, but never furloughed either.

First the old.  The Court granted cert. in the handgun “straw purchase” case, Abramski v. United States, 12-1493, a one-time relist out of the Long Conference discussed last week.  As has been widely reported, of the nine petitions challenging the Obama administration’s initial suite of greenhouse gas regulations – all relisted after the Long Conference – the Court granted cert. in six, limited to the single question whether EPA permissibly determined that regulation of greenhouse gases from new motor vehicles triggered stationary-source permitting requirements under the Clean Air Act.  The Court declined to review various other questions presented in those petitions.  The questions raised in three petitions left shivering in the (ironic) cold, Virginia v. Environmental Protection Agency, 12-1152; Pacific Legal Foundation v. Environmental Protection Agency, 12-1153; and Coalition for Responsible Regulation v. Environmental Protection Agency, 12-1253, suggest the Court is not inclined to revisit the broader “endangerment finding” underlying the entire regulatory suite, or EPA’s “tailpipe rule” standards for cars.  (Disclaimer:  I and my firm, Vinson & Elkins LLP, represent the petitioners in Coalition for Responsible Regulation.)  Joining the three greenhouse gas petitions in the pantheon of the cigarless, one-time relist Sepulvado v. Cain, 12-10251, a prisoner-on-top capital habeas petition involving procedural default rules, was denied without comment.

Other culprits from last week’s slew of first-time relists are back for a second round of brinksmanship:  Robers v. United States, 12-9012, involving an offset for the fair market value of real estate under the Mandatory Victims Restitution Act, now traveling alongside Lipsey v. United States, 12-10638, which appears to raise the same issue and was relisted this week for the first time.  Other two-time relists include the “hot pursuit” case Stanton v. Sims, 12-1217, and the trio of state-on-top habeas cases, Ryan v. Hurles, 12-1472 (involving an evidentiary hearing on a judicial-bias claim), Rapelje v. McClellan, 12-1480 (asking whether dismissal “for lack of merit in the grounds presented” is adjudication on the merits), and Unger v. Young, 13-95 (asking whether a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas).  The Court also relisted for a second time in Hall v. Florida, 12-10882, concerning the Sunshine State’s ability to define what constitutes mental retardation under Atkins v. Virginia.  Joining Hall is first-time relist Quince v. Florida, 13-5753, which presents the same question.

In addition to Lipsey and Quince, the Court relisted this week in three other new cases, two of them involving class action settlements.  Pattern or coincidence?

First up is Marek v. Lane, 13-136, which asks whether, or in what circumstances, a cy pres remedy that provides no direct relief to class members comports with the requirement of Federal Rule of Civil Procedure 23(e)(2) that a settlement binding class members must be “fair, reasonable, and adequate.”  Cy pres, as regular readers of the 1643 revised edition of the English Reports know only too well, originates from common-law limitations on the strictness of the mortmain rules requiring forfeiture of property disposed of other than to a legal heir.  Got it?  Anyhoo, “cy pres appears to be law nerd olde French for “close enough”:  The case involves a class action challenge to Facebook’s “Beacon” program, in which the site would share and publish information about members’ purchases at companies that advertise on Facebook.  As part of a settlement, Facebook donated $6.5 million to create a foundation dedicated to education about privacy and protection of personal identity information online – relief that the petitioner contends gives absentee class members no relief, in challenging the Ninth Circuit’s decision upholding the settlement.

Second is Martin v. Blessing, 13-169, which involves whether an objecting class member in an antitrust case, whose claims have been waived by a settlement negotiated by class counsel appointed by a racially conscious class-certification order, has standing to challenge the class-certification order and, through it, the antitrust settlement.  The case involves class action antitrust challenges to the merger of Sirius and XM satellite radio.  The district court (per Judge Harold Baer, who apparently is no stranger to such orders) certified the class, contingent on the class lawyers staffing the case in proportion to the class’s “race and gender metrics.”  The Second Circuit held that an objecting class member lacked standing to bring an equal protection challenge to the district court’s lawyer-diversity requirement, absent a showing that he suffered “actually inferior” legal service.

Last up is Sellars v. North Carolina, 12-10958, which involves the constitutionality of additional detention for purposes of an open-air drug-dog sniff of Mr. Sellars’s vehicle, after completion of a lawful traffic stop.  The trial court suppressed evidence obtained after the dog alerted on Sellars’s car, because (according to the police cruiser’s dashboard cam) more than four minutes elapsed between the time the police issued Sellars a warning and returned his license, and when the dog alerted on his car.  A North Carolina appeals court reversed the suppression, holding that any prolonged detention that happened after the citation was “de minimis.”

That’s all for this week.  Absent hitting my personal “debt ceiling” for time-wasting and fruitless minutia, we’ll be back next week for more of the same.

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

[page]13-136 [/page] (relisted after the October 11 Conference)

[page]13-169 [/page] (relisted after the October 11 Conference)

[page]13-5753 [/page] (relisted after the October 11 Conference)

[page]12-10958[/page] (relisted after the October 11 Conference)

[page]12-1217[/page] (relisted after the September 30 and October 11 Conferences)

[page]12-1472[/page] (relisted after the September 30 and October 11 Conferences)

[page]12-1480[/page] (relisted after the September 30 and October 11 Conferences)

[page]12-10882[/page] (relisted after the September 30 and October 11 Conferences)

[page]13-95[/page] (relisted after the September 30 and October 11 Conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 17, 2013, 12:53 PM),