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The Relist Watch before Christmas

John Elwood reviews Monday’s relisted cases, with help from Clement Clarke Moore.


‘Twas the last Conference before break, when all through the land;

All the lawyers were waiting, petitions in hand;

Their eyes were trained on SCOTUSblog with care;

In hopes that cert. grants soon would be there.


Seven Justices were prepared to read opinions aloud;

(The rest were at Ole Miss, drawing a crowd.)

Ginsburg in her jabot; and I in my suit;

Were thinking of cases that would soon get the boot.


When up in the courthouse there arose such a clatter;

I sprang from my desk to see what was the matter;

Had the much-discussed streak ceased to exist?

There was a rare grant without a relist!


But Harris seems to be a special case;

For the March calendar there was a race;

If with this petition, they were, as usual, wary;

It couldn’t get granted until January.


The rest of the grants had the usual pace;

With at least one relist for every case;

There was one relist for Kimble and Bullard as well;

While Toca did for five relists dwell.


For last week’s other relists, the news was the same;

We wait as the Justices call them by name;

Likely relist number eight for Kalamazoo;

Christeson v. Roper gets its fifth relist too.


Then up to the courthouse the Justices flew;

With a sleigh of new relists, and reschedules too:


With apologies for breaking meter, one relist didn’t make it this week: The Justices rejected Schultz v. Wescom, 14-59, after one relist. It asked whether a district court’s order striking or refusing to consider a qualified immunity motion is subject to interlocutory appeal. [Disclaimer: John Elwood, who purportedly contributes to this column in various capacities, is among counsel to the respondents in Schultz.]

The rare winner of a relist-free grant is Harris v. Viegelahn, 14-400. It concerns whether a debtor who has filed for bankruptcy under Chapter 13 and wins approval of a debt-repayment plan but then converts to Chapter 7 has a right to a refund of undistributed funds held by the Chapter 13 trustee. Although likely granted without a second review for the scheduling reasons alluded to above (i.e., the desire to fill the March argument calendar without the additional month of delay necessary if they granted it after the January 9 Conference), it is also possible the petition was simply too dull to have to review more than once. I kid! I kid! We all know it is because counsel of record is just so darned honest-looking. Kimble v. Marvel Enterprises, Inc., 13-720, which asks whether the Court should overrule Brulotte v. Thys Co, in which it created a per se bar on licensing arrangements involving post-expiration patent royalties, was granted after one relist. The same was true of Bullard v. Hyde Park Savings Bank, 14-116, vindicating our prediction last week that it (and not doppelganger Gordon v. Bank of America, N.A., 13-1416), would be the vehicle for resolving whether an order denying confirmation of a bankruptcy plan is appealable. Finally, Toca v. Louisiana, 14-6381, which had two relists after the record arrived and five total, involves the retroactivity of Miller v. Alabama, in which the Court held that that sentencing minors to life imprisonment without parole violates the Eighth Amendment.


Our returning relists are led by our current relist champ Kalamazoo County Road Commission v. Deleon, 13-1516, which likely got its eighth relist since the record arrived. (We say “likely” because in these quiet days when there is nearly a month between Conferences, the Clerk’s Office has not yet updated the docket.) The case asks whether it is an “adverse employment action” or a “materially adverse action” when an employer grants an employee’s request for a job transfer that he winds up disliking. Surely, we’ll be seeing an opinion in that case in the New Year. Famous last words. Christeson v. Roper, 14-6873, a capital case apparently earning its fifth relist, 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.]


The first new relist is a biggie: NACS v. Board of Governors of the Federal Reserve System, 14-200. Congress passed a statute requiring the amount banks charge merchants for debit-card transactions (called an interchange fee) to be reasonable and proportional to the cost incurred by the card issuer with respect to the transaction. The Board of Governors of the Federal Reserve System issued regulations implementing this statute permitting banks to use the interchange fee to recover (among other things) certain fixed costs of operating their debit card systems. NACS (formerly known as National Association of Convenience Stores, and before that, as Prince) and other retail trade groups sued. The district court invalidated the rule, but the D.C. Circuit reversed, largely upholding the Board’s rules as reflecting a reasonable construction of the statute. NACS again argues that the regulations violate the statute. [Disclaimer: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioners in this case.]


Next down the chimney is Illinois v. Cummings, 14-209. A police officer in Sterling, Illinois, pulled over Derek Cummings after a check of his license plate revealed that there was an outstanding warrant for the vehicle’s owner, a woman. The officer saw that Mr. Cummings was the only person in the vehicle and wasn’t a woman, but asked him for his license and proof of insurance anyway. After Cummings failed to produce a valid license, the officer cited him for driving with a suspended license. Rather than applaud the officer for not rushing to judgment, Cummings attempted to suppress the evidence of his lack of license on the ground that any justification for the traffic stop disappeared once the officer saw that the dude was not a lady. The trial court granted the motion and was affirmed by split decisions in the Illinois Appellate and Supreme Courts. Determined to obtain the $500 – $2500 fine, Illinois filed a cert. petition, claiming a circuit- and state-high-court split over whether an officer can ask for a license after reasonable suspicion for a stop has dissipated.


The final new relist, Chandler v. United States, 14-282, is yet another gift from the St. Nicholas of criminal litigation: the Armed Career Criminal Act (18 U.S.C. § 924(e)(1)), whose legendary ambiguity has spawned untold appeals. (A not-very-funny person once joked that there are more ACCA appeals than there are armed career criminals.) Tavares Chandler was sentenced to a mandatory minimum sentence of fifteen years under the Act. Chandler argued that one of his three predicate offenses, a Nevada conviction for conspiracy to commit robbery, was not a qualifying “violent felony” under the ACCA: Because the Nevada conspiracy statute did not require an overt act, Chandler reasoned, the crime he was convicted of may not have actually involved the use or threat of violence. The Ninth Circuit ruled against him in a per curiam opinion based on circuit precedent, but the entire panel then joined in Judge Bybee’s concurrence questioning that precedent. (The Ninth Circuit then denied rehearing en banc over the vote of Judge Bybee and the recommendation of the other judges, who were not eligible to vote.) Based on the concurrence, it seems the Ninth Circuit is asking the Supreme Court to give it another reversal as a holiday gift.   The question presented is whether a conspiracy to commit a robbery is a violent felony under the ACCA absent any overt act in furtherance of the crime.


On to the reschedules, which so far have been little more than delayed cert. denials but are hoping for better in 2015. None of this week’s reschedules have new Conference dates set yet. Geller v. Patent and Trademark Office, 14-175, involves Pamela Geller and Robert Spencer’s attempt to trademark the phrase “STOP THE ISLAMISATION OF AMERICA” (we hear SIOA-themed gifts are giving “Frozen” a run for its money this season).   Choosing from its sack of reasons to deny the application, the PTO decided that the trademark was disparaging. Geller appealed, arguing that the PTO was improperly discriminating against them based on its interpretation of the viewpoint of their political speech. Geller also claims that the Federal Circuit, which sided with the PTO, used a standard of review (substantial evidence) that conflicts with the majority of other circuits and is “illogical in theory and muddled in practice.”


Plumley v. Austin, 14-271, is a state-on-top habeas case from the Fourth Circuit. The case involves courts’ use of a presumption of vindictiveness when a judge resentences a defendant to a higher sentence. Austin was convicted of attempting an escape from prison. The sentencing judge decided that part of Austin’s sentence for the escape would run concurrently with his existing sentence and the remainder would run consecutively. Austin then filed a motion with the trial court arguing that the state law required either a fully consecutive or fully concurrent sentence and asked the state supreme court to issue mandamus directing the judge to pick one. This proved to be a mistake, as the judge chose the fully consecutive option while the mandamus petition was still pending. On habeas review, a divided panel of the Fourth Circuit applied a presumption of judicial vindictiveness and sided with Austin. The warden’s petition, which is supported by two amicus briefs, asks whether the presumption applies in cases in which no higher court has vacated the original sentence.


Carr v. Kansas, 14-6810, is a capital case asking (1) whether a jury view of locations relevant to a criminal case is a critical stage of a criminal prosecution so that the defendant and his counsel have a right to be present and (2) whether the trial court’s evidentiary rulings, which Carr claims resulted in the complete exclusion of his defense, can be declared harmless or whether they required reversal. Kansas has its own petition in that case, Kansas v. Carr, 14-450, arising from the Kansas Supreme Court’s reversal of Carr’s sentence. Since that case is scheduled to be considered in the January 9, 2015 conference, the Court likely rescheduled Carr’s petition so the cases could be considered together.


Finally, Irish v. Cain, 14-182, is a state post-conviction appeal in a capital case out of Louisiana. Irish was convicted based in part on testimony of a co-defendant. Ten years after his conviction, Irish learned that the lead prosecutor in his case had written a letter to Louisiana State Penitentiary officials saying the co-defendant had a “bad attitude,” “had shown no remorse” and had told a “blatant lie” about the prosecutor physically threatening him. Irish asks whether these statements constitute improperly withheld impeachment evidence and require that his conviction be vacated. The Court might be waiting to see which side, the Irish or Louisiana, prevails on the field.


The Justices sprang to their sleighs, to their clerks gave a call;

And for last-minute shopping, they rode to the mall;

But I heard them exclaim, so you need not have fear-

“Happy Christmas to all, we’ll have more relists next year!”


Thanks to Conor McEvily for making the list and Dmitry Slavin for checking it twice, and also for drafting this update (particularly the poem).




(relisted after the September 29, October 10, October 17, October 31, November 7, November 14, November 25, December 5, and December 12 Conferences)




(relisted after the November 7, November 14, November 25, December 5, and December 12 Conferences)




(relisted after the December 12 Conference)




(relisted after the December 12 Conference)




(relisted after the December 12 Conference)


Recommended Citation: John Elwood, The Relist Watch before Christmas, SCOTUSblog (Dec. 18, 2014, 10:08 AM),