John Elwood reviews Monday’s relisted cases.

Happy April, Court watchers! Spring has finally arrived so it’s time for a nice drive or to enjoy some baseball.  Or, if you’re the indoorsy type, it’s the ideal time to spend some time in a dimly lit arena poring over dockets while the delicate scent of ionized air, axle grease, and nerd sweat wafts upon the air.  Let’s jump right in.

The petitioners in the patent-infringement case Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 13-854, scored an Opening Day win, which is more than we can say about the New York Metropolitans.  The week’s lone cert. grant involves whether a district court’s factual findings supporting claim construction of a patent are reviewed de novo (as the Federal Circuit requires) or only for clear error.  But before we move on, let me venture an ill-informed prediction for Federal Circuit doctrine in this area.

When the Court finally announces it has taken action in Ryan v. Hurles, 12-1472if that day ever comes – people will roll their eyes and look around for Ashton Kutcher.  Well, it didn’t happen this week; instead, we got episode number seventeen in this long-running franchise.  Unless the question presented has spontaneously mutated during the small eternity the case has been pending, Hurles still involves whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim. If Hurles is the Chicago Cubs of relists, these next two cases might be competing for the role of the Kansas City Royals.  Both Tolan v. Cotton, 13-551, a qualified immunity claim arising in the case of a man shot because of a license-plate typo, and Martinez v. Illinois, 13-5967, asking whether jeopardy attaches if the jury is sworn although the prosecution refuses to participate in a case, are back for a fifth attempt to win an elusive playoff berth.  Hot on their heels is Hussain v. Obama, 13-638, back for a fourth time raising the proper standard of review for a Guantanamo detainee’s habeas petition.  Finally, scoring back-to-back relists is Elane Photography, LLC v. Willock, 13-585, asking whether the First Amendment protects a photographer’s religiously motivated decision to refuse to photograph same-sex weddings. No word yet on whether the social media wedding concierges are asserting a corresponding free-speech right.

Those relist veterans are ready to haze this week’s newcomers. But Zivotofsky v. Kerry, 13-628, is no rookie; it’s on its second trip to the majors.  During his first trip to The Game, Zivotofsky – who seeks to take advantage of a statute that purports to require the Secretary of State to list the birthplace of Americans born in Jerusalem as “Israel” (which, to depart from the baseball conceit momentarily, is almost as fraught as referring to the “New Jersey Giants”) – established that courts couldn’t duck the issue on “political question” grounds.  On the first trip, the Court sua sponte ordered briefing on an additional question (whether the statute was unconstitutional for infringing the president’s foreign affairs authority), but chose to leave the question unanswered.  The D.C. Circuit invalidated the statute on that ground.  Zivotofsky seeks further review, but it appears that the Court may be addressing petitions alphabetically.   (Note that the case was relisted once during its first trip, too.)

Who’s on second?  Dart Cherokee Basin Operating Co. LLC. v. Owens, 13-719, a Class Action Fairness Act case.  The petitioners removed the case to federal court under CAFA, but the district court sent it back to state court because they did not provide evidentiary support that the case satisfied the statute’s amount-in-controversy requirement. A divided panel of the Tenth Circuit refused to hear the (discretionary) appeal and the court denied rehearing en banc by a four-to-four vote.  Americans can’t stand when things end in a tie – that’s why we’re not Europeans – so Dart Cherokee has come to the Court seeking review on the question whether a defendant seeking removal needs to include evidence supporting federal jurisdiction in the notice of removal or if a short and plain statement of the grounds for removal is enough.

Sepulvado v. Jindal, 13-892, a capital case out of the Fifth Circuit, involves a legal issue sufficiently grave that even the truly tasteless lose their desire to embed puerile hyperlinks:  whether and to what extent the Due Process Clause entitles a condemned inmate to timely notice of the method by which he will be executed.  Louisiana used a three-drug cocktail to execute prisoners until the supply of one of the drugs ran dry; the state has since indicated that it will use a single drug, but refused to disclose the method. The Fifth Circuit said Sepulvado should have brought his claim when Louisiana’s legislature repealed a law that required the three-drug cocktail be used, and that he waited too long. The relist here might be a product of timing:  the petitioner filed a supplemental brief the day before the Conference, and the Court may have needed more time to consider it.

This is something you don’t see often:  the Court rescheduled Thomas v. Nugent, 13-862, a qualified immunity case out of the Fifth Circuit, not for the very next Conference, as is usual, but for a Conference two weeks later.  Why?  We don’t know either – although it might be so it can be considered together with another (but unrelated) qualified immunity case on for that conference, Morris v. George, 13- 731.  Baron Pikes died in police custody after being tased eight times.  The petition raises more issues than the protagonist in a student-written play, involving whether it was clearly established in 2008 that tasing a handcuffed but non-cooperative detainee eight times violates the Fourth Amendment; the burden of disproving qualified immunity; and subject matter jurisdiction.

Now we’re moving in to extra innings.  This next bit definitely constitutes mission creep since it involves holds, rather than relists, but this caught our eye.  This week the Court is holding two Confrontation Clause cases.  The first is Yohe v. Pennsylvania, 13-885, out of the commonwealth that rakes in tens of dollars annually from townname novelty products.  At his trial on drunk-driving charges, Yohe was able to confront the lab official who reviewed and confirmed test results but was not able to question the employees who actually ran the tests. The Pennsylvania Supreme Court declared that enough to satisfy the Confrontation Clause.  Yohe’s dramatically phrased question: “who is the ‘witness?’”  Walker v. Wisconsin, 13-8743, raises a similar question. Our best guess is that the Court is holding this duo for their compatriot, James v. United States, 13-632. The Solicitor General only recently filed his brief in opposition in that case (after four extensions) and, while the case is not yet scheduled, it appears to be on a glide path for a late April Conference.

And with that, it’s time to bring in the closer and put this game to rest.  The Court will be back next Monday, so we’ll be back with more formulaic claptrap next week.

Thanks to Conor McEvily and Dmitry Slavin for compiling and drafting this update:


Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(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, March 7, March 21, and March 28 Conferences)


Issue(s): Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.

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


Issue(s): Whether a defendant is acquitted for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, where a court grants a motion for directed verdict after the prosecution refuses to present any evidence at trial to the empaneled and sworn jury.

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


Issue(s): (1) Whether the court of appeals failed to apply the governing preponderance of the evidence standard in affirming the denial of petitioner's habeas corpus petition, thus denying him the meaningful review mandated by Boumediene v. Bush; and (2) whether the court of appeals improperly shifted the burden of proof to petitioner to disprove affiliation with al Qaeda or the Taliban at the time of his capture.

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


Issue(s): Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

(relisted after the March 21 and March 28 Conferences)


Issue(s): Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

(relisted after the March 28 Conference)


Issue(s): Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.”

(relisted after the March 28 Conference)


Issue(s): (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.

(relisted after the March 28 Conference)

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case, which is listed without regard to its likelihood of being granted.

Issue(s): Whether and to what extent the Due Process Clause of the Fourteenth Amendment entitles a condemned inmate to timely notice of the method by which he will be executed.

(relisted after the March 28 Conference)

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in Sepulvado v. Jindal.]

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch – On Location at Carver-Hawkeye Arena, SCOTUSblog (Apr. 3, 2014, 5:49 PM),