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Relist Watch

John Elwood reviews Monday’s relisted cases.

We were as amazed as everyone by news accounts of SCOTUS fans who camped out over the weekend waiting for the orders needed to figure out the new relists. For those with a little more patience (or without six large to spare), we present this year’s Relist Derby betting guide. Like any good handicapper, we list every petition in the running then crow about it when one of our upstart wild guesses pans out. Hope you’ve eaten your Frosted Flakes; this is going to be a long one. There are a huge number of new relists this week.

While we wait for the American Pharaoh to make his decision, we turn to last week’s relists. Two of last week’s entries are well on their way to becoming an international star. The Court granted cert. in Green v. Donahoe, 14-613, in which a postal worker exiled to Wamsutter, Wyoming asks whether “under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns … or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation.” Spokeo, Inc. v. Robins, 13-1339, also rewarded its touts with a grant. That petition asks “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” A lot of interest in that one after a case presenting essentially the same issue was dismissed as improvidently granted during October Term 2011.

A relist veteran is back for another run for the roses. Larkin v. Florida, 14-7884, leads the pack with four relists since the arrival of the record. It still asks whether the Florida Supreme Court violated clearly established law by allowing a trial court that had found reasonable doubt regarding the defendant’s competency to then allow the defendant to represent himself at his own competency hearing. Meanwhile, County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825, added a second relist and will be aiming for the Triple Crown this week. The petition, arising from a successful challenge to Arizona’s Proposition 100 (which denies bail to undocumented aliens charged with certain offenses), asks whether the Ninth Circuit erred in holding that a denial of bail is permissible only after individualized assessments of flight risk or future dangerousness.

Last week, we mentioned a couple of cases that appeared to have been relisted at least in part because of late-arriving records. Those cases continue to be on keen ice as the records trickle in. Jordan v. Fisher, 14-8035, had four boxes delivered just two days before the last Conference and notches its second relist as the clerkerati pore over the documents. Jordan asks: (1) whether it is error to deny a habeas petitioner a certificate of appealability in a case in which the state supreme court was divided and another federal court of appeals would recognize the claim; and (2) whether the fact that the prosecutor did not expand the sentence to which the defendant was exposed prohibits a finding of prosecutorial vindictiveness. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is co-counsel to the petitioner in this case.] Meanwhile, Foster v. Humphrey, 14-8349, had six boxes of record arrive on the same day and likewise was relisted a second time. It asks if the “Georgia courts err[ed] in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case.” Based on the materiality of the allegations in the petition, the clerks will be taking a close look at this one.

We may have jumped the gun last week when we stated that Davis v. Michigan, 14-8106, has finally been tied up. After being rescheduled without a Conference date since mid-February, it has finally been relisted. Davis asks the now-familiar question whether Miller v. Alabama applies retroactively, but it also asks a second (related) question: Whether the Eighth Amendment’s ban on cruel and unusual punishment forbids sentencing a child to life without parole when that child has been convicted of felony murder despite not having killed or intended to kill. The Court has already granted cert. to answer the first question in Montgomery v. Louisiana, 14-280, so that doesn’t really explain the relist. Mayhaps the Court is considering adding Davis to confront the second question. The Court also added another Miller retroactivity case to its stable, relisting Carp v. Michigan, 14-824, for the first time. Carp only lists one question presented: Miller retroactivity . However, Carp claims that his older half-brother is the one who actually committed the murder, so his case is arguably similar to Davis.

Davis isn’t the only rescheduled case to be brought up to the Relist Derby. Jackson v. City and County of San Francisco, 14-704, is a Second Amendment challenge to a San Francisco ordinance requiring all residents who keep handguns in their homes to stow them away in a lock box or disable them with a trigger lock whenever the owners are not carrying them on their persons. Petitioners contend that the ordinance violates the Second Amendment as interpreted in District of Columbia v. Heller. Jackson, which was rescheduled last week, now adds a relist to its trophy case.

The Court filled out the field with ocho ocho ocho new relists. Starting on the rail is AEP Energy Services v. Heartland Regional Medical Center, 14-1. The case arises from consolidated class action lawsuits alleging that AEP Energy Services and its parent, American Electric Power Company, Inc., conspired with more than twenty gas companies to manipulate natural gas prices. The two suits at issue in this petition were filed in Missouri and Wisconsin. The AEP entities sought dismissal based on a lack of personal jurisdiction and the District of Nevada, where the cases had been consolidated, agreed. The notoriously far-right Ninth Circuit reversed, holding that AEP entities’ conduct was expressly aimed at Wisconsin and Missouri and that it led to sufficient intended harm in those states. The petitioners contend that this puts the Ninth Circuit on the lonely side of a circuit split, with most other courts requiring that the forum constitute a focal point of the defendants’ conduct. In case one circuit split is not enough, the AEP entities also claim that the respondents’ alternative argument, that the AEP entities made sales to Wisconsin and Missouri companies, implicates a second split. The Court initially considered this petition in October, but held it for Oneok Inc. v. Learjet, Inc., which could have mooted the petition.

Next to the firing line is Manzano v. Indiana, 14-631. Manzano was accused of raping his six-year-old daughter. He admitted to the rape although he claimed to have been too intoxicated to remember it. At the time, Indiana law permitted a defense of voluntary intoxication to negate mens rea. His attorney encouraged him to plead guilty without the benefit of a plea bargain, and the court gave Manzano the maximum possible sentence. Manzano sought post-conviction relief, claiming that his attorney made a litany of errors. Under Indiana Supreme Court precedent, a petitioner seeking to attack a guilty plea based on ineffective assistance of counsel must show that he would have been acquitted had he gone to trial. The Indiana courts determined that Manzano would have been convicted, and thus rejected his petition. Manzano argues that this standard conflicts with the one used by the Supreme Court, all twelve circuits, and almost all other states. That standard, Manzano claims, only requires a finding that the petitioner would not have pleaded guilty but for counsel’s errors. Manzano is so confident that his petition itsaknockout that he asks for summary reversal.

Apparently inspired by the twin spires of Churchill Downs, the Court has relisted a pair of paired cases. First up are FERC v. Electric Power Supply Association, 14-840, and EnerNOC, Inc. v. Electric Power Supply Association, 14-841. At issue is an order by the Federal Energy Regulatory Commission (FERC) regulating the prices operators of wholesale-electricity markets pay for reductions in energy consumption. Because electricity is so expensive during peak periods (such as heatwaves or Game of Thrones airings), electricity providers pay users to reduce their consumption at those times. This is often cheaper than buying additional electricity from power plants and reduces the risk of black-, brown-, and taupe-outs. At the wholesale level, this process involves operators of wholesale-electricity markets making payments to “demand response resources,” which are firms that aggregate contractual commitments to reduce demand. FERC, citing its power under federal law to regulate wholesale electricity markets, ordered those operators to pay the demand response resources at the same rates that they pay for electricity. A divided panel of the D.C. Circuit threw out the order, holding that the transactions involve retail markets, where states have exclusive jurisdiction. The petitions ask whether FERC reasonably concluded that it has authority under the Federal Power Act, 16 U.S.C. § 791a et seq., to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. If that explanation is as confusing as the pronunciation of Mubtaahij, you can ask one of the many amici that have filed briefs to explain it to you. (And while you’re at it, see if they know what the hell a “bolo” is.)

Now for the second pair. Jermaine Dunbar might have pictured himself in an action movie when he entered a store with a fake pistol and told the cashier “Damn, Bitch, give me the money or I’ll kill you.” But it turned into a bad comedy when he was foiled by a plexiglass door and arrested within five minutes. Collin Lloyd-Douglas viciously beat a woman with a hammer. Both men were arrested in Queens County, New York, which prefaces Miranda warnings with a standard introduction that explains the charges the suspects are facing and tells them that the interview is their only chance to provide an alibi or give their side of the story before arraignment. The New York Court of Appeals overturned the convictions, holding that this preamble undermines the subsequently communicated Miranda warnings by convincing suspects that it is in their interest to explain their side of the story in the interview. In its petitions, New York v. Lloyd-Douglas, 14-912, and New York v. Dunbar, 14-941, the home state of Tencendur asks whether a brief, standardized introduction, which asks no questions and elicits no responses, requires application of the Miranda exclusionary rule.

The next war story involves Taylor v. Barkes, 14-939. Barkes was a prisoner in a Delaware correctional facility. As part of prison intake proceedings, he underwent a suicide screening, during which a licensed practical nurse determined that suicide prevention measures were not necessary for him. The next day, Barkes hanged himself. Barkes’s family sued Taylor, the Commissioner of the Delaware Department of Correction, as well as the warden of the prison under 42 U.S.C. § 1983. They claimed that the officials violated Barkes’s Eighth Amendment rights by using an outdated screening protocol and not having a registered nurse administer it. The officials claimed qualified immunity and argued that, under Ashcroft v. Iqbal, they could not be held responsible for the actions of their subordinates. The district court and Third Circuit rejected those arguments, holding that it was the officials’ “own deliberate indifference,” rather than the actions of their subordinates, that led to the constitutional violation. In their petition, the officials ask (1) whether Section 1983 authorizes the imposition of supervisory liability for a subordinate’s alleged constitutional violation and (2) whether there is a clearly established right under the Eighth Amendment to the proper implementation of adequate suicide prevention protocols.

Our final new relist involves yet another late-arriving record, Dunn v. DeBruce, 14-807, a state-on-top capital habeas case. DeBruce was convicted of capital murder for shooting a victim during a robbery.   In post-conviction proceedings, DeBruce argued that his counsel had been ineffective at the penalty stage by failing to investigate and present additional mitigation evidence. The Alabama courts rejected the petition, noting that DeBruce presented very little evidence of what his attorneys did in preparation for trial. The district court found this judgment not to be unreasonable under AEDPA, but the Eleventh Circuit reversed and granted habeas relief. The petition argues that the Eleventh Circuit failed to apply the two levels of deference required for habeas challenges involving ineffective assistance of counsel. The petition was scheduled to be considered on April 17, but the district court record did not arrive until April 20. It is now on the calendar for the May 14 Conference, so we have a little while to think up more strained jokes about it.

We end, as usual, with newly rescheduled cases. First is Campbell-Ewald Company v. Gomez, 14-857. Campbell-Ewald is an advertising agency that conducts recruiting campaigns for the U.S. Navy. As part of a campaign, the agency developed a recruiting text message, and then paid another company to send it to 150,000 cell phones.   Respondent Gomez received the message and was so motivated by it that he filed a class action suit under the Telephone Consumer Protection Act. Campbell-Ewald, seeking to avoid an expensive class action suit, quickly offered Gomez $1503 per text message received, to pay all reasonable costs he would recover if he were to prevail, and to stipulate to an injunction prohibiting the company from sending such messages. Because the maximum statutory penalty is treble the statutory $500 per violation, the offer would have provided more than Gomez could gain from the litigation. Nevertheless, Gomez refused the offer and the district court refused to declare that the offer had mooted his claims. However, the court granted summary judgment to Campbell-Ewald, holding that as the agency was acting as a Navy contractor, it was entitled to derivative sovereign immunity. The Ninth Circuit agreed that the claim was not moot, but reversed the sovereign immunity ruling, holding that derivative sovereign immunity applied only in the context of property damage resulting from public works projects. The petition asks (1) whether a case becomes moot when the plaintiff receives an offer of complete relief on his claim; (2) whether a case becomes moot when the plaintiff has asserted a class claim but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co. for government contractors is restricted to claims arising out of property damage caused by public works projects. If the first two questions sound familiar, it’s because they were presented to the Court in Genesis Healthcare Corp. v. Symczyk, but the Court decided then that the mootness issue was not properly presented.

Finally – or should we say “fine-uh-leee!,” we have O’Keefe v. Chisholm, 14-872, which will not be considered at the May 1 Conference because it has already been rescheduled a second time. The petitioners are supporters of Wisconsin Governor and GOP presidential primary leading light/future also-ran (we at Relist Watch always strive for balance) Scott Walker. They claimed that as part of an investigation into Governor Walker, they were targeted for abuse and intimidation by the Milwaukee District Attorney. They sought injunctive and monetary relief under Section 1983 against the district attorney, claiming that the investigation was in retaliation for their exercise of First Amendment rights. The district court found that Younger abstention was improper and denied the district attorney’s claim of qualified immunity. The Seventh Circuit reversed, holding that the Anti-Injunction Act barred the claims while a state court proceeding was ongoing and that the district attorney was entitled to qualified immunity. The petition asks (1) “whether considerations of ‘equity, comity, and federalism’ insufficient to support abstention can override Mitchum [v. Foster]’s holding that 42 U.S.C. § 1983 is an ‘expressly authorized’ statutory exception to the Anti-Injunction Act;” and (2) whether “government officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association, particularly where non-retaliatory grounds are insufficient to support the investigation.”

Like the Derby, this post is unusually long. Unlike the Derby, you won’t win fame and fortune for finishing first; only a respite from an onslaught of bad jokes. But congratulations on finishing. Until next time, carpe diem.

Thanks to Stephen Gilstrap and honorary Kentuckian Dmitry Slavin for compiling and drafting this update.



(relisted after the March 27, April 3, April 17, and April 24 Conferences)


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(relisted after the April 17 and April 24 Conferences)


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[page]14-939[/page] (relisted after the April 24 Conference)


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Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 1, 2015, 12:19 PM),