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Relist Watch

John Elwood reviews Monday’s relisted cases.

I am just hearing about this, but apparently, there was an election this week. Those of us who have declared the Supreme Court’s weight room as a legal address (don’t tell the guards) don’t get to vote for representatives in Congress, although there are offsetting benefits to D.C. residency. First among them, of course, is marginally faster access to relist information, which is what I assume people mean when they mention “Big Data.”

We start, as always, with the incumbents that went down to embarrassing defeat. Two related rescheduled cases, 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, will get to spend more time with their families. Both asked whether New York City can, consistent with the First Amendment, require pregnancy centers 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 to consult with a licensed medical provider.

The rest of last week’s bunch perceived no anti-incumbent mood. Johnson v. City of Shelby, 13-1318, gets its fourth relist. So we will have to wait a little longer to learn the answers to the great philosophical quandaries of our time: Can a case be dismissed for failing to cite the statute authorizing the cause of action? Can lower courts create such a requirement? Does such a requirement apply to 42 U.S.C. § 1983? And how many consecutive questions does it take before a reader gets annoyed and skips to the next paragraph? Carroll v. Carman, 14-212, also on its fourth relist, asks an even more important question: which door must John Law use when he comes a-calling? The one actually in front of the house? Or the one that gets the most use? With so many relists, it may be that the Court is in need of expert guidance and will CVPDG: Call for the Views of Pizza Delivery Guys.

Brumfield v. Cain, 13-1433, gets its third relist since arrival of the record. It asks (1) whether a state court that relies entirely on proof presented at a petitioner’s penalty phase proceeding (say that five times fast) to decide his claim of mental retardation has based its decision on an unreasonable determination of facts; and (2) whether the court must fund an indigent petitioner’s attempt to obtain evidence of his mental retardation. Also on relist three since the record was requested is Kalamazoo County Road Commission v. Deleon, 13-1516. The petition 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.

Is rescheduling the new relisting? Both Crews v. Farina, 13-1227, and Whitman v. United States, 14-29, have now been rescheduled three times. Crews is yet another state-on-top habeas case involving how much leeway a federal court gets in determining a state court made an unreasonable factual determination. Whitman seeks to clarify several standards regarding insider trading.

It’s time to meet the new arrivals. The new relist that is getting the most attention this week is obviously King v. Burwell, 14-114, the latest Affordable Care Act case. It asks whether federal tax-credit subsidies for health care insurance purchased through an “Exchange established by the State” also apply to insurance policies purchased through federal exchanges. The IRS decided that it does, and the Fourth Circuit agreed. However, in Halbig v. Burwell, the D.C. Circuit held that the subsidy only applies to exchanges run by individual states, and that case is now being reheard en banc. Until the Court updated the docket, there was a question whether King was being held for the D.C. Circuit’s (eventual) Halbig decision, but now it’s a confirmed relist.

Our remaining relists won’t get the same press as King, but they’re still celebrities to us. The Ninth Circuit makes several appearances this week with (surprise!) state-on-top habeas cases. Glebe v. Frost, 14-95, involves limitations on closing arguments in criminal cases. The Washington Supreme Court held that a trial court’s ruling forcing a defendant to limit his closing argument to one of two theories was harmless error. A split Ninth Circuit, sitting en banc on habeas review, determined that it was structural error under Herring v. New York. The Court now has the opportunity to recognize a new category of mostly harmless error. Meanwhile, Martel v Lujan, 14-132, involves a defendant who allegedly killed his estranged wife and an off-duty sheriff. Lujan confessed but later argued that he was not properly made aware of his right to an attorney. The California Court of Appeals agreed that his confession should have been excluded, but found that its use was harmless error because Lujan confessed again on the stand. A district court and the Ninth Circuit disagreed and granted habeas relief. The question raised in the petition is whether a defendant’s in-court confession is “fruit of the poisonous tree” in harmless-error analysis.

If you read any Relist Watch last Term (and we’re sure you read every single one), you know that the King of All Relists (at least in our hearts) is Ryan v. Hurles. That case was relisted twenty-two times last Term before the Ninth Circuit took things into its own hands and issued a revised opinion, leading to the petition’s dismissal. But like a certain Senate candidate, the king is back again, gaining its first relist in its new form, Ryan v. Hurles, 14-191. Long-time readers can recite the first question presented by heart: whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim. To make our lives a little more exciting, the state’s lawyers have added a second question: whether the ineffectiveness of post-conviction counsel can provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim. Best of all, the Court only received the requested record materials on Tuesday, and there’s some chance the Court doesn’t already know it all by heart. So there’s a decent chance the Relist King’s streak isn’t over yet.

Staying on the criminal side but finally leaving the Ninth Circuit, Joseph v. United States, 13-0639, asks whether the Eleventh Circuit’s appellate procedural default rule conflicts with the retroactivity rule established in Griffith v. Kentucky. Joseph, convicted of selling cocaine and sentenced as a career offender, did not challenge his career offender designation in his opening appellate brief. After the Supreme Court decided Descamps v. United States, modifying the rules for determining career offender status, Joseph sought to modify his brief to add a challenge under Descamps, but the Eleventh Circuit refused, declaring the challenge waived. Joseph argues that the circuit’s procedural default rule conflicts with the practice of other circuits and with the Court’s retroactivity cases. Meanwhile, from down on the bayou, Toca v. Louisiana, 14-6381, is another in a long line of petitions involving the retroactivity of the Court’s decision in Miller v. Alabama, which held that life without parole for minors violates the Eighth Amendment. Mr. Toca, who was seventeen at the time of the crime, is serving a sentence of life imprisonment without possibility of parole for murdering a friend during a botched robbery attempt.

Our final relist is of the pro se variety: Chen v. Mayor and City Council of Baltimore, 13-10400. Mr. Chen attempted to sue Baltimore’s leaders for razing a house he owned in the city, allegedly to hide damage the city caused. However, Chen failed to realize that he had to arrange to deliver the summons himself, and had to ask for an extension of time after the deadline to serve the defendants had already passed. The district court granted the extension and Chen eventually served some of the defendants. The defendants, having finally learned that they were being sued, asked the court to vacate the extension of time, arguing that Mr. Chen had failed to show good cause for the extension. The district court agreed and vacated the extension, but not before admitting that the Fourth Circuit was on the lonely side of a circuit split in requiring good cause for an extension of the 120-day limit to effect service.

Finally, we have a pair of newly rescheduled cases. Dean Foods Co. v. Food Lion, LLC, 14-110, was pushed back a week. The case involves an alleged conspiracy between milk suppliers and processors to raise the prices of processed milk in violation of antitrust laws. The district court granted summary judgment to the defendant milk suppliers, finding that the plaintiffs had failed to prove that an illegal conspiracy caused milk prices to rise. The Sixth Circuit reversed. The question presented is whether in such cases the plaintiff must produce evidence of causation to defeat a motion for summary judgment. Our other reschedule is going to have to wait a little longer, as the Court has not yet set a new date to consider KBR, Inc. v. McManaway, 14-105, which involves claims that the political question doctrine bars state-law tort claims against a battlefield support contractor operating in a war zone and the scope of the Federal Tort Claims Act’s combat-activities exemption. It may be the Justices are figuring out how to handle the case in light of the closely related petitions in KBR Services, Inc. v. Harris, 13-817, and KBR, Inc. v. Metzgar, 13-1241, in which the Court has called for the views of the Solicitor General. Or perhaps the Court is simply holding McManaway for the arrival of the Solicitor General’s brief.

Mercifully, the 2014 election season and this Relist Watch are (mostly) over. But junkies who need more won’t have long to wait. Relist Watch will be back next week; 2015 will see three gubernatorial elections; and the 2016 presidential campaign has already begun.

Thanks to Dmitry Slavin for compiling and drafting this update.



(relisted after the September 29, October 10, October 17, and October 31 Conferences)


(relisted after the September 29, October 10, October 17, and October 31 Conferences)


(relisted after the September 29, October 10, October 17 and October 31 Conferences)


(relisted after the September 29, October 10, October 17 and October 31 Conferences)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)


(relisted after the October 31 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 6, 2014, 1:59 PM),