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Relist Watch

John Elwood reviews Monday’s relisted cases.

Welcome back readers! 2015 started out with such promise, but here it is a mere sixteen days in and it’s already shot to Hell, with you sitting there devitalizing your bright eyes with our pixelated nonsense. Well, it could be worse. You could already have blown your New Year’s Resolution to be more punctual. But that’s okay – we at Relist Watch believe in second (and third, and fourth, and fifth) chances.

The new year took an early turn for the worse with our reigning relist heavyweight, Kalamazoo County Road Commission v. Deleon, 13-1516, a case asking 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. Kalamazoo danced, it juked, it jabbed a respectable eight rounds before the judges called the fight by denying cert. Perhaps of some consolation to the contender: the fight was decided by split decision. In a dissent from the denial of certiorari, Justice Alito remarked upon “[t]he strangeness of the [Sixth Circuit’s] holding,” which he believed “is so clearly wrong that summary reversal is warranted.”

With that K[alamazo]O, Christeson v. Roper, 14-6873, becomes our new title holder. Capital case Christeson earned its sixth relist this week; it 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.] Also making a repeat appearance this week is NACS v. Board of Governors of the Federal Reserve System, 14-200, on for its second relist. I’d be tempted to call this case an administrative-law snoozer, but that would describe it perfectly. I kid! This is a big case for merchants who are paid by debit card, which is all of them. It involves [deep breath] a challenge to the Federal Reserve’s implementation of a federal law that requires the amount banks charge merchants for debit-card transactions to be reasonable and proportional to the cost incurred by the card issuer with respect to the transaction. [Disclaimer: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioners in NACS.]

One last note about the last of 2014’s lingering cases: as we warned, because the Clerk’s office was, um, acting at a deliberate pace updating the dockets before the break, it was hard to tell the holds from the relists by looking at the docket. So Illinois v. Cummings, 14-209, which involves the extension of lawfully initiated traffic stop after reasonable suspicion has dissipated, appears to be a hold for Rodriguez v. United States, 13-9972, concerning a similar issue. Similarly, Chandler v. United States, 14-282, asking whether conspiracy to commit robbery is a violent felony justifying an enhanced sentence under the Armed Career Criminal Act, appears to be a hold for Johnson v. United States, 13-7120; recall that last Friday, the Court restored Johnson, which was argued in November, to the April calendar for reargument on the issue of “[w]hether the residual clause of the Armed Career Criminal Act [] is unconstitutionally vague.”  I’m sorry, but I thought that the answer to any question involving ACCA was “unconstitutionally vague,” including “what does ACCA taste like?” and “what is ACCA’s favorite color?”

With the last of 2014’s grim detritus behind us, let us press on to the New Year’s new relists, of which there were a lucky thirteen. Get comfortable.

We at Relist Watch would never write a post in a shallow and self-serving effort to lure web surfers towards our tedious shoals; we come by our page views honestly, through our forthright and in-depth discussion of Jennifer Lawrence topless and other important subjects of the day. So when we mention same-sex marriage #ssm #marriageequality #equality4all #vowed&proud as the first new relist of the week, you know that prominent placement results from a principled editorial judgment, such as that it permits us to knock out about a third of this week’s new relists in one paragraph. As Lyle reported earlier this week, four new same-sex-marriage cases – one for each of the four states composing the Sixth Circuit, each resulting from that court’s recent rejection of constitutional challenges to state same-sex marriage bans – were relisted on Monday: Obergefell v. Hodges, 14-556 (Ohio), Tanco v. Haslam, 14-562 (Tennessee), DeBoer v. Snyder, 14-571 (Michigan), and Bourke v. Beshear, 14-574 (Kentucky). In the last couple of Conferences, when multiple cases have presented the same issue for the Court’s review, the Court has tipped its hand about its preferred vehicle before the actual grant by relisting it and “holding” the runner up (see, e.g., Walker v. Texas Division, Sons of Confederate Veterans, Inc., 14-144 (involving a First Amendment challenge to license plate restrictions), and Bullard v. Hyde Park Savings Bank, 14-116 (addressing appealability in a bankruptcy proceeding)). This time around, the Justices are being way more pokerfaced about their preferred vehicle. The Court’s decision whether to grant cert. in one or more of these cases may well be announced today.

Two new relists are not so new: Two previously rescheduled cases were promoted to relists this week, adding a new twist to the Court’s murky rescheduling practice. Irish v. Louisiana, 14-182, presents the question whether due process requires reversal of a conviction where the lead prosecutor withheld evidence that he considered a key post-trial witness to be a liar. Plumley v. Austin, 14-271, a state-on-top habeas case from the Fourth Circuit, asks whether a reviewing court may presume that a trial judge acted “vindictively” in giving a defendant a higher sentence after resentencing, when no higher court had vacated the trial judge’s original sentence.

Horne v. Department of Agriculture, 14-275, puts the “crop” into our new relist crop. In Horne, California farmers seek just compensation for the seizure of part of their raisin crop under USDA “marketing orders,” as the case makes its second trip up from the farm league. On cert. this time, the Horne petition asks (1) “[w]hether the government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation when it ‘physically takes possession of an interest in property’ … applies only to real property and not to personal property”; (2) “[w]hether the government may avoid the categorical duty to pay just compensation for a physical taking or property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion”; and (3) “[w]hether a governmental mandate to relinquish specific, identifiable property as a ‘condition’ on permission to engage in commerce effects a per se taking.” [Disclaimer: John Elwood, who allegedly contributes to this column in various capacities, filed an amicus brief in support of the petitioners in Horne.]

CLS Transportation Los Angeles, LLC v. Iskanian, 14-341 allows us to linger a bit longer in California. Iskanian, a limo driver, sued his employer CLS for alleged California Labor Code violations, bringing both a traditional class action and a “representative action” under the Golden State’s Private Attorneys General Act (PAGA). The trial court held the class action was barred because Iskanian had signed an arbitration agreement waiving any participation in a “class action” or “representative action,” but the California Supreme Court, in an opinion by Justice Goodwin Liu, held that because PAGA allowed an individual to act as a “proxy” for the state, the Federal Arbitration Act’s “goal of promoting arbitration as a means of private dispute resolution does not preclude [the California] Legislature from deputizing employees to prosecute Labor Code violations on the state’s behalf.” The petition asks whether an employee’s waiver in an arbitration agreement of a collective or “representative action” under PAGA is so distinguishable from a “class action” waiver that it is immune from the otherwise preemptive effective of the Federal Arbitration Act.

McFadden v. United States, 14-378, concerns the deceptively innocuous-sounding drug “bath salts.” In 2011, McFadden, a construction worker who operated a small business reselling overstocked items on the internet, began openly selling bath salts, which he believed (not quite erroneously) to be “aroma therapy products.” At the time, none of the compounds McFadden was selling was listed as a federally prohibited “controlled substance.” Nevertheless, the government arrested and indicted McFadden, insisting that he had violated the Controlled Substance Analogue Enforcement Act, under which analogues to controlled substances are also treated as Schedule I or II controlled substances. Under the Analogue Act, if the jury determines that a substance has (a) a chemical structure and (b) a physical effect that are both “substantially similar” to a Schedule I or II drug, then the substance is a controlled substance analogue whose distribution (among other things) can be punished. McFadden sought a jury instruction that would have required the jury to find that he knew that the substance he was selling had the characteristics of a controlled substance analogue, but both the district and appellate courts found themselves bound by contrary Fourth Circuit precedent. McFadden’s cert. petition asks “[w]hether, to convict a defendant of distribution of a controlled substance analogue, the government must prove that the defendant knew that the substance constituted a controlled substance analogue.” [Disclaimer: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.]

The fact pattern in Bower v. Texas, 14-292, reads like the beginning of a Coen Brothers film. On October 8, 1983, four men were shot at close range, with the same weapon, in an airplane hangar in Sherman, Texas. While a criminal investigation initially focused on one victim’s drug-trafficking ties, Bower, a married father of two with no criminal record, was ultimately indicted and tried for the murders. At trial, the prosecution argued, among other things, that the crime was committed with a rare type of subsonic ammunition to which “at most fifteen people” in the state had access. After Bower’s conviction, the jury was given minimal instruction on how mitigating evidence should be weighed, and was presented with Texas’s since-revised special issues on death penalty sentencing, which focused on (a) the perpetrator’s deliberateness and (b) his future dangerousness. Bower was sentenced to death. On state habeas, the trial court concluded that Bower should receive a new sentencing trial, but the Texas Criminal Court of Appeals disagreed. On cert., Bower asks (1) “[w]hether the former Texas special issues for death penalty sentencing [provide] … an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character [under Penry v. Lynaugh]”; (2) whether the state’s post-trial disclosure of evidence relating to ammunition used in the crime resulted in a violation of the Fifth and Fourteenth Amendments under Brady v. Maryland; and finally, the so-called Lackey claim: (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

The petitioner in Mata v. Holder, 14-185, an undocumented immigrant, was convicted of misdemeanor assault, after which the Department of Homeland Security initiated removal proceedings against him. After an immigration judge denied Mata’s application for cancellation of removal, he appealed to the Board of Immigration Appeal; Mata’s counsel, however, failed to file a brief in support of his appeal, resulting in its dismissal. With the benefit of new counsel, Mata asked the BIA to equitably toll the ninety-day due date for filing a motion to reopen his case. But the BIA denied the motion, and the Fifth Circuit – departing from every other court of appeals to consider the issue – held that it had no jurisdiction to review such a BIA decision. Mata’s petition asks “[w]hether [a court of appeals] has no jurisdiction to review [a] request that the [BIA] equitably toll the 90-day deadline on [a] motion to reopen [a case] as a result of ineffective assistance of counsel.” The government concedes that the Fifth Circuit erred in holding it lacked jurisdiction and, in a move that may give Justice Scalia fits, recommends the Court grant, vacate, and remand for further consideration in light of its “position concerning the court of appeals’ jurisdiction set forth in this brief.”

Let’s conclude our discussion of this week’s new relists with a pair of petitions from the in forma pauperis docket. After the petitioner in Carter v. California, 14-5273, was detained for jaywalking, the arresting officer frisked him for weapons and identification and found both. Carter was later charged with, among other things, possession of a firearm by a felon. At his preliminary hearing, Carter moved to suppress evidence obtained during the search, but also conceded that his initial detention was legal because he had jaywalked. Carter’s suppression motion was denied. The intermediate state appellate court held that (a) Carter had forfeited his suppression claim by conceding to the magistrate the validity of his initial detention, and (b) that the officer had sufficient cause to search Carter. The California Supreme Court denied review. On cert., Carter’s petition asks, among other things, (1) whether the police had “reasonable suspicion to conduct a pat search of Carter’s outer clothing after stopping him for jaywalking, due to his failure to show identification and his wearing of bulky clothing in a high crime area”; and (2) whether the “waiver or forfeiture doctrine by the California Court of Appeal dilute[ed] the protection of the Fourth Amendment” and “violate[d] Carter’s state-created right to appeal his motion to suppress.”

The petitioner in Kingsley v. Hendrickson, 14-6368, was a pretrial detainee who alleges that, after refusing to remove a piece of paper that was affixed to a light in his cell, he was taken to a “receiving cell” and “tased” by jail officers. Kingsley filed a Section 1983 suit against two of the officers, alleging that they had used excessive force during the incident and violated his right to be free from punishment as a pretrial detainee. The district court rejected Kingsley’s argument that the jury instructions should require only a showing that the force used was unreasonable, and instead required a showing of subjective intent to cause harm; the Seventh Circuit affirmed. Kingsley’s petition asks “[w]hether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Finally, for the ultimate in Supreme Court esoterica, we give you a brief word on this week’s rescheduled cases. Geller v. Patent and Trademark Office, 14-175, an old rescheduled case involving an attempted trademark of the phrase “stop the Islamisation of America” was unceremoniously denied on Monday.  Two previous rescheduled cases were rescheduled yet again last week: Carr v. Kansas, 14-6810, case concerning whether a “jury view” of locations relevant to a criminal case is a critical stage of a criminal trial requiring the presence of a defendant and assistance of counsel; and its doppelganger, Kansas v. Carr, 14-450, which asks (1) whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt”; (2) whether the Confrontation Clause applies to the “selection” phase of capital sentencing proceedings; and (3) whether a trial court’s decision not to sever the sentencing phase of two co-defendants violated an Eighth Amendment right to an “individualized sentencing” determination. Although the cases have been rescheduled, it’s still unclear until when: they haven’t been distributed for any particular Conference.

Finally, let’s turn to our lone new rescheduled case, Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux, 14-220. The case stems from a civil suit, filed against a Catholic diocese, by two parents who alleged that their minor daughter was inappropriately touched by a church parishioner. The parents claim that a parish priest had been made aware of the abuse while hearing the victim’s confession, but negligently failed to report the abuse to the authorities. The petition’s question presented is “whether a court can pivot liability for a priest’s failure to report certain communications to public authorities on the court’s own determination of whether those communications constitute ‘confession per se’ … or whether it must respect the church’s own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication.”

On the topic of confessions, here’s one: we’re praying for a smaller group of relists next week. Until then, keep your ear to the grindstone.

Thanks to Stephen Gilstrap and Conor McEvily for compiling and drafting this update.



(relisted after the November 7, November 14, November 25, December 5, December 12, and January 9 Conferences)


(relisted after the December 12 and January 9 Conferences)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)


(relisted after the January 9 Conference)




Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 16, 2015, 10:52 AM),