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Relist Watch

John Elwood finally reviews Monday’s relisted cases.

Under the principle that weather and sports must always be saved until the end of the news to keep weary eyes watching those local ads, I should be burying this lede. But we here at Relist Watch aspire to better things, so we tell you up front: There were between zero and two new relists this week – it’s hard to be sure because the Court hasn’t updated the docket. Given the lack of new cases, we were sorely tempted to just pull th’ ol’ CTRL-C/CTRL-V move (that’s ⌘-C/⌘-V for you hipsters), but we figured that would merely irritate both our readers.

We begin, as always, with Old Business. In happy news, the Court granted three cases off the relist rolls, thus resuming the “new normal” practice of routinely relisting cases before granting them. First up, at least in our hearts, was Henderson v. United States, 13-1487, in which a convicted felon argues that the federal prohibition on felons “possessing” firearms does not prohibit the government from transferring firearms in their custody on behalf of owners no longer allowed to possess them. [Disclosure: John Elwood, who purportedly contributes to this column when not making annoying third-person references to himself, is among counsel to the petitioner in Henderson.] L.A. moteliers likely felt a tremor as the Court granted review in City of Los Angeles v. Patel, 13-1175, which will decide whether a hotel has an expectation of privacy in its legally mandated guest registry that protects it from warrantless review. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Patel.] And hard as it is to believe, Chappell v. Ayala, 13-1428, is a state-on-top habeas case asking whether a state court decision that constitutional error was harmless is an adjudication on the merits subject to deferential review.  In addition to these plenary grants, in one case the petition was granted, the decision below vacated, and the case remanded for further proceedings: Volkman v. United States, 13-8827. Dr. Volkman — no relation to Dr. Venkman — gets another shot at avoiding conviction for allegedly helping his patients see the Staypuft Marshmallow Man. He argued that the Controlled Substances Act only punishes doctors who are found to have engaged in “illicit drug dealing and trafficking as conventionally understood.” While the Court remanded for further consideration in light of Burrage v. United States, lest Dr. Volkman think that he was on now Easy Street, Justice Alito (joined by Justice Thomas) wrote a separate opinion making clear to the Sixth Circuit that he was not necessarily entitled to relief.

But three cases never made it out of the Relist Fire Swamp. Cope v. South Carolina, 13-8427, the last holdover from OT2013, fell victim to a R.O.U.S. It raised the issue of whether a state judge should be reversed for excluding as irrelevant evidence of an alternative suspect’s modus operandi. Khan v. Chowdhury, 13-1479, likewise bit the dust; it would have placed before the Court a purported five-way split about whether it can be harmless error to refuse to reverse a general jury verdict when one of the theories supporting it is legally invalid. Finally, Chism v. California, 14-5442, involved whether a state court reviewing a Batson v. Kentucky challenge can uphold the legitimacy of a peremptory challenge for reasons other than those raised by the prosecutor in light of Miller-El v. Dretke.

Two cases, Arroyo v. United States, 14-5227, and Freidus v. ING Groep NV, 13-1505, fall into the mystery box, probably asking themselves, “Are we relists? Or are we dancer?” In truth, both are probably holds, which we will confirm once the dockets are updated. Arroyo asks the Court whether simple battery involving the “mere touching” of a police officer is a violent felony for purposes of the Armed Career Criminal Act; it also presents the recurring question whether Almendarez-Torres v. United States should be overruled. It’s probably being held for another case raising the same question to catch up, namely, Anderson v. United States, 14-5229, which is still awaiting the arrival of Solicitor General’s brief in opposition (now on its third extension). Freidus concerns whether a plaintiff has to allege subjective knowledge that a statement of opinion was false under Section 11 of the Securities Act of 1933, and might be a hold for Omnicare, Inc. v. Laborers Dist. Council.

Four relists continue to lurk in the penumbras. Johnson v. City of Shelby, 13-1318, likely on its third relist, presents a question of great interest to eighteenth-century legal formalists and Bluebook-fascists (who probably preferred when the cover was “Germanic brown”): Can a case be dismissed for failing to cite the statute authorizing the cause of action? Can lower courts create such a requirement? And does such a requirement apply to 42 U.S.C. § 1983? Carroll v. Carman, 14-212, likewise (probably) on its third relist, asks whether police must use a residence’s front door for purposes of a “knock and talk” under the Fourth Amendment, when it appears that visitors also customarily use another entrance. As long as these relists continue, the world will never know. Data we’ve accumulated suggest that the likelihood of a grant is elevated but trending downward by the third relist.

Brumfield v. Cain, 13-1433, a capital case now likely on its second relist since arrival of the record, addresses a situation where a federal court found the state court erred in relying on penalty phase evidence presented before Atkins v. Virginia, and erred in failing to provide funding to the defendant to prove his intellectual disability. The Fifth Circuit’s reversal of that ruling is now under review. In the Grass is Greener Department, Kalamazoo County Road Commission v. Deleon, 13-1516, also likely on its second relist since arrival of the record, asks whether it is an “adverse employment action” for a discrimination claim, or a “materially adverse action” for a retaliation claim, when an employer grants an employee’s request for a job transfer that he winds up not liking.

We have a first under the Court’s new policy of explicitly noting the rescheduling of a case on the docket – in fact, two firsts. Seriatim reschedulings have begun. Both Crews v. Farina, 13-1227, and Whitman v. United States, 14-29, have now been double-rescheduled. Crews concerns the appropriate approach to reviewing state court factual determinations and state court applications of federal law in habeas. Whitman asks a series of questions related to convictions under federal law for insider trading, including whether the insider information must be a “significant factor” in the trading decision, whether fiduciary duty is determined under state law or federal common law, and whether exculpatory testimony in a federal civil enforcement proceeding is admissible under Federal Rule of Evidence 804(b) when the witness is unavailable.

We also have two first-time reschedulings in the related cases of The Evergreen Association, Inc. v. City of New York, 13-1462, and Pregnancy Care Center of New York v. City of New York, 13-1504. These petitions put before the Court the First Amendment questions of whether pregnancy centers that do not refer patients to abortion providers or emergency contraception can be required by New York City law to state in their advertising and facilities whether they employ licensed medical staff, whether they provide or refer abortion, emergency contraception, and prenatal care, and that the city encourages pregnant women consult with a licensed medical provider.

Well, you’ve done it again — you’ve wasted another perfectly good forty-five seconds skimming this post for anything of conceivable interest. Next time, do yourself a favor and just use the End key. You’ll be as happy as we are that we’re done with Relist Watch until November. Tune in then to see how we’re once again able to cram next to no information into 1300 words.

Thanks to Stephen Gilstrap and Ralph C. Mayrell for compiling and drafting this update.



(relisted after the September 29, October 10, and October 17 Conferences)


(relisted after the September 29, October 10, and October 17 Conferences)


(relisted after the September 29, October 10, and October 17 Conferences)


(relisted after the September 29, October 10, and October 17 Conferences)


Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 24, 2014, 12:11 PM),