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Relist Watch

John Elwood reviews Monday’s relisted cases

Top o’ the afternoon lads and lassies, and welcome to a synthetic pale green Saint Paddy’s Day edition of McRelist Watch.  In honor of  those of Irish ancestry (which appears to be pretty much all of us), this week we’ll be celebrating the Emerald Isle’s most significant contributions to civilization . . . which we’ve narrowed down to dancing without moving your arms, and making others look tan.

As deftly as Saint Neville drove the snakes from Ireland, so the Court has driven two petitions from its wee patch o’ relists.  After being thrice relisted, the luck ran out for petitioners in The Falls Church v. The Protestant Episcopal Church in the United States of America, 13-449, as the Court denied cert. without comment in this long-running dispute between the national Episcopal Church and a breakaway former congregation.  The Court also denied review in Gomez v. Stephens, 13-6646, a one-time relist in which a pro se petitioner (in gaol for having a bit too much o’ the green) argued that he was denied counsel at a “critical stage” of his criminal proceedings in violation of United States v. Not That Kind Of Cronic.  However, the petitioners in Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., 13-640, found a pot of gold at the end of their rainbow: the Court granted cert. in the one-time relist to determine whether, under American Pipe & Construction Co. v. Utah, the filing of a putative class action satisfies the three-year time limitation in Section 13 of the Securities Act with respect to the claims of the putative class members.

Still on the relist rolls this week is Ryan v. Hurles, 12-1472, which, at an astonishing fifteen relists, is as persistent as wince-inducing Keanu Reeves accents.  But something actually happened with this case in the last week – besides, presumably, the circulation of successive draft opinions and/or memos among Chambers:  the Court called for the record after the last Conference.  Maybe this means we’ll finally learn whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  Back for a third week are both Tolan v. Cotton, 13-551, a case involving a qualified immunity claim arising from a police officer’s error entering a license plate number that resulted in a shooting, and Martinez v. Illinois, 13-5967, a case asking whether jeopardy attaches when the prosecution refuses to participate in a case because its witnesses didn’t show up but the jury is sworn anyway.  And the Court has again relisted Hussain v. O’Bama, 13-638, in which the petitioner asks whether the court of appeals failed to properly apply the preponderance of the evidence standard to his habeas petition, thereby depriving him of meaningful review under Boumediene v. Bush.

The Court added two new cases to the relist ranks this week.  First up is Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 13-854, a patent-infringement suit over a drug widely prescribed for treating multiple sclerosis, and a case so well-lawyered that Alan Dershowitz’s name appears on the brief’s inside cover.  The question presented is whether a district court’s fact findings made in the course of patent interpretation are reviewed for clear error, as Federal Rule of Civil Procedure 52(a) requires, or de novo as the Federal Circuit requires.  The last new arrival to Relist Watch this week is Jennings v. Stephens, 13-7211, in which the petitioner – a death-row inmate convicted of killing a Houston police officer while robbing an adult bookstore – asks, among other things, whether the Fifth Circuit erred in reversing the district court’s grant of habeas relief (which was based on ineffective assistance of counsel) when it deferred to a state-court prejudice determination that Jennings’s claims were contrary to Supreme Court precedent. Jennings says he suffers from mental impairment.

Doubtless in commemoration of the patron saint of engineers – and perhaps in anticipation of an outbreak of the Irish flu – the Court will not be issuing orders Monday.  But they (and we) will be back the following week for more relist action.  Until then, as the Irish say, póg mo thóin!

Thanks to Conor McEvily for compiling and drafting this update, and for making me appear lifelike by comparison.


(relisted after the September 30, October 11, October 18, November 1, November 8, November 15, November 26, December 6, December 13, January 10, January 17, January 24, February 21, February 28, and March 7 Conferences)


(relisted after the February 21, February 28, and March 7 Conferences)


(relisted after the February 21, February 28, and March 7 Conferences)


(relisted after the February 28, and March 7 Conferences)


(relisted after the March 7 Conference)


(relisted after the March 7 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 14, 2014, 11:00 AM),