John Elwood reviews Monday’s relisted cases.

With what’s left of Thanksgiving coming up, we are obligated as denizens of the Internet to do a post on things we’re thankful for. So here we go. We are thankful that the Court’s no-longer-new relisting practice has made this feature marginally more relevant (less irrelevant?). We are thankful that Ryan v. Hurles is back to provide us with one easy joke every week. We are thankful that the Internet never runs out of cute animals. But most of all, we are thankful for (both) our readers. Thanks, Mom! Thanks, Aunt Edna!

Enough sentimentality, on to business. Bank of America’s lawyers will be having a side of research with their turkey this Thanksgiving, as the Court granted cert. in the once-relisted twins Bank of America  v. Caulkett 13-1421, and Bank of America v. Toledo-Cardona, 14-163. The cases ask whether a debtor whose first mortgage is undersecured may strip off a second mortgage on the same property. The Court also took a moment for one of its favorite traditions – summarily reversing a Ninth Circuit grant of habeas relief. The reversal came in twice-relisted Glebe v. Frost, 14-95. The Court held that it is not clearly established that a limitation on closing argument is structural error.

A handful of last week’s relists will be eating crow instead of turkey. The Court denied cert. in Sexton v. Panel Processing, Inc., 14-152, which had been relisted once. The petition asked whether Section 510 of the Employee Retirement Income Security Act (ERISA) “prohibits retaliation against an employee who makes unsolicited complaints to management regarding possible ERISA violations.” Twice-rescheduled Dean Foods Co. v. Food Lion, LLC, 14-110, met the same fate. We may never know whether in antitrust cases, a plaintiff must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption.

The rest of last week’s relists will continue to linger around the table like Uncle Ernie (although they probably won’t be talking about their bunions). Brumfield v. Cain, 13-1433 received its fifth relist since the record arrived. It asks (1) whether a state court that relies entirely on proof presented at a petitioner’s penalty phase proceeding 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. Kalamazoo County Road Commission v. Deleon, 13-1516 also racked up relist number five (since the record was requested). It questions 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 disliking. Surely the Justices are spilling some ink over those cases. Joseph v. United States, 13-10639 (third relist), asks whether the Eleventh Circuit’s appellate procedural default rule – categorically prohibiting consideration of issues not raised in an appellant’s opening brief – conflicts with the retroactivity rule set out in Griffith v. Kentucky. Toca v. Louisiana, 14-6381, (third relist and still awaiting the record, which is apparently walking from New Orleans) concerns the retroactivity of the Court’s decision in Miller v. Alabama, holding that life without parole for minors violates the Eighth Amendment. And then there’s Ryan v. Hurles, 14-191 (third relist of the term, twenty-five total), which still addresses (1) whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim, and (2) whether the ineffectiveness of post-conviction counsel can provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim.

The license plate cases picked up their second relists. Walker v. Texas Division, Sons of Confederate Veterans, Inc., 14-144, and Berger v. ACLU of North Carolina, 14-35, both ask whether messages on state-issued specialty plates qualify as government speech and are immune from any requirement of viewpoint neutrality. Joining them for a second go-round is Christeson v. Roper, 14-6873, which asks (1) whether an actual conflict of interest meets the “interests of justice” standard established in Martel v. Clair and requires substitution of conflict free counsel, and (2) whether appointed counsel who procedurally defaulted the client’s federal habeas application by untimely filing the petition should continue their court appointment to argue that their own misconduct warrants equitable tolling. [Disclaimer: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, filed an amicus brief in support of the petitioner in Christeson.]

Joining that crowd of relists is a set of high-profile environmental cases. Michigan v. EPA, 14-46, Utility Air Regulatory Group v. EPA, 14-47, National Mining Association v. EPA, 14-49, and Coal Country v. EPA, 14-∞, involve whether the Environmental Protection Agency must consider costs as a factor in determining “appropriate” regulations for emissions from electric utility steam generating units. The Clean Air Act requires the EPA to study the public health hazards of electronic generation unit emissions, and then regulate these units’ emissions of hazardous air pollutants if it finds that regulation is “appropriate and necessary.” In the waning days of the Clinton presidency, EPA found such regulation “appropriate.” President Bush’s EPA changed its mind. Environmental groups successfully sued, arguing that the EPA did not properly consider the health hazards of the pollutants. So the EPA, now under President Obama, reversed course again. This time, a number of states and industry groups sued, arguing that some of the regulated emissions pose no public health risk, and that the costs of regulating the rest far outweigh the benefits. The D.C. Circuit, over Judge Kavanaugh’s (partial) dissent, sided with EPA, holding that it was not required to take costs into account. The petitions present variations of the same question: whether an agency can ignore costs in determining that a regulation is “appropriate.” [Disclaimer: Lawyers at Vinson & Elkins LLP, whose attorneys contribute to this feature, represent one industry respondent in these cases.]

Our last new relist is Redd v. Chappell, 14-6264, a pro se petition in a capital case out of the Ninth Circuit. Redd was sentenced to death for killing a grocery store employee during a robbery. After Redd lost his appeal, the California Appellate Project filed a pro forma state habeas petition for him in order to toll the limitations period. The next step usually involves the California Supreme Court appointing habeas counsel, but Redd grew tired of waiting after two years and, acting pro se, asked the court to recall its order sending the case back to the trial court and take on his appeal again. When the court refused to rule on his pro se request, stating that he was still represented by the California Appellate Project, Redd took his case to federal court. The district court rejected his petition, and the Ninth Circuit refused to grant a certificate of appealability, noting that the issue of whether Redd could file pro se was one of state law. The petition asks whether the California Supreme Court violates the First Amendment right to petition for redress of grievances by barring prisoners represented in name only from making pro se filings.

We also have one big new rescheduled case: BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc., 14-123, was rescheduled for the November 25 Conference. This case has a complicated procedural history. To oversimplify: BP had a mishap in the Gulf. Seeking to settle an enormous class action suit, BP agreed to a broad settlement. The claims administrator (with the district court’s blessing) interpreted the settlement to include Gulf residents BP says were not injured by the spill. A divided panel of the Fifth Circuit certified the class, holding that it did not need to resolve BP’s argument about injury since it went to the merits of the parties’ contentions rather than commonality. The Fifth Circuit narrowly denied rehearing en banc. BP argues that this decision creates a circuit split with the Second, Seventh, Eighth, and D.C. Circuits. The question presented is whether a district court may certify a class that includes numerous members who have not suffered an injury caused by the defendant.

Looks like the Justices’ plates are full in time for Thanksgiving. While there may be news for Court-watchers during the interim, we won’t be back until after the holiday, when we all will have a little too much to be thankful for. Thanks to Ralph Mayrell and Dmitry Slavin for compiling and drafting this update.

_________________________

13-1433

Issue(s): (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

(relisted after the September 29, October 10, October 17, October 31, November 7, and November 14 Conferences)

13-1516

Issue(s): 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.

(relisted after the September 29, October 10, October 17, October 31, November 7, and November 14 Conferences)

13-10639

Issue(s): Whether the Court should overturn the Eleventh Circuit’s “appellate procedural default” rule, which categorically prohibits the Eleventh Circuit from considering the merits of issues not raised in an appellant’s opening brief – under any standard of review – and as applied in criminal cases contravenes the retroactivity principle of Griffith v. Kentucky, and conflicts with the rules applied in every other circuit (all of which accord at least some form of merits review, where as here, the new issue is raised for the first time on appeal).

(relisted after the October 31, November 7, and November 14 Conferences)

14-191

Issue(s): (1) Whether, under this Court's decision in Martinez v. Ryan, post-conviction counsel's ineffectiveness can provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim, or whether Martinez v. Ryan is limited to excusing only the default of a claim of ineffective assistance of trial counsel; and (2) whether, under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a state-court adjudication of a judicial-bias claim is per se unreasonable under 28 U.S.C. § 2254(d)(2) merely because the allegedly biased judge rules on the claim based on facts within her knowledge without first conducting an evidentiary hearing, or whether a federal court must grant AEDPA deference to the judge's determination when the evidence in the state-court record supports it.

(relisted after the October 31, November 7, and November 14 Conferences)

14-6381

Issue(s): 1) Does the rule announced in Miller v. Alabama apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find an exception?

(relisted after the October 31, November 7, and November 14 Conferences)

(relisted after the November 7 and November 14 Conferences)

14-144

Issue(s): (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

(relisted after the November 7 and November 14 Conferences)

14-6873
Disclosure: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel on an amicus brief in support of the petitioner in this case.

Issue(s): (1) Whether an actual conflict of interest meets the “interests of justice” standard established in Martel v. Clair and requires substitution of conflict free counsel for conflicted counsel appointed under 18 U.S.C. § 3599; and (2) whether counsel appointed under 18 U.S.C. § 3599, who procedurally defaulted the client’s federal habeas application by untimely filing the petition, should continue their court appointment and determine the existence of, and plead, their own abandonment and/or egregious misconduct warranting equitable tolling of their client’s statute of limitations under Holland v. Florida.

(relisted after the November 7 and November 14 Conferences)

14-46

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

(relisted after the November 14 Conference)

14-47

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

(relisted after the November 14 Conference)

14-49

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

(relisted after the November 14 Conference)

14-6264

Issue(s): Whether the California Supreme Court denied petitioner his federal constitutional rights in refusing to accept for filing a pro se motion to recall the remittitur in his direct appeal.

(relisted after the November 14 Conference)

 

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 19, 2014, 3:58 PM), https://www.scotusblog.com/2014/11/relist-watch-48/