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Relist Watch

John Elwood reviews Monday’s relisted cases.

Like this year’s swollen field of (sometimes swollen) presidential aspirants, the swelling ranks of the Court’s cert. contenders contain both paragons of tenacity and hopeless causes. Being more or less hopeless causes ourselves, we at Relist Watch stand sentry over the cert. pool’s fickle waters, ready to shine a light on the lucky survivors.

Let’s go from that maudlin intro straight into the tedium: This week, a pair of first-time fliers was given a class upgrade. FERC v. Electric Power Supply Association, 14-840, and EnerNOC, Inc. v. Electric Power Supply Association, 14-841, are two linked cases concerning the Federal Energy Regulatory Commission’s regulation of prices that operators of wholesale-electricity markets pay for reductions in energy consumption. After a single relist, the cases were consolidated and the petitions granted, limited to the two questions that, while rewritten by the Court, remain unspeakably dull: 1) Whether FERC (not to be confused with FERG) reasonably concluded that it has authority under the Federal Power Act 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; and 2) whether the court of appeals erred in holding that the FERC rule is arbitrary and capricious.

Unfortunately, that’s the lone bit of good news for last week’s crew of fifteen relists. For the rest of the gang, there was some bad news, but mostly no news.

In the bad-news bin, a trio of relists bit the dust this week. Two first-time relists, New York v. Lloyd-Douglas, 14-912, and New York v. Dunbar, 14-941, were linked cases in which the Empire State sought to overturn a New York Court of Appeals decision holding that an “introduction” to standard Miranda warnings administered to the respondents — apprising them of the charges against them and informing them that the interview is their only chance to give their side of the story before arraignment — undermined the warnings. The Court denied cert. in both on Monday. The Court likewise denied cert. in AEP Energy Services v. Heartland Regional Medical Center, 14-1, meaning we’ll just have to continue wondering 1) if due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum; and (2) if due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.

The rest last week’s relists are all still in a holding pattern. The most senior of the group, Larkin v. Florida, 14-7884, notched its fifth relist this week; 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. “Seems like we should be seeing an opinion in that case before long,” Relist Watch mused, prompting the Court to prepare to grant cert. Then there’s three-time relist County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825, which 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. Two-time relist Jackson v. City and County of San Francisco, 14-704, involves a Second Amendment challenge to a San Francisco ordinance requiring all residents who keep handguns in their homes to stow them in a lock box or disable them with a trigger lock whenever the owners are not carrying them on their persons.

Also drawing their second relists this week are Manzano v. Indiana, 14-631 and Taylor v. Barkes, 14-939. In Manzano, where the petitioner’s attorney encouraged him to plead guilty to rape without the benefit of a plea bargain, the petition asks whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, the defendant must establish prejudice by showing that he would have been acquitted. And in Barkes, involving a Section 1983 suit brought by the family of a prisoner who committed suicide, the petition asks (1) whether 42 U.S.C. § 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.

For the last two weeks, we’ve mentioned a pair of petitions whose relists appeared to be the result of late-arriving records. With both cases’ records arriving in late April, the two have now respectively earned what is arguably their first real (i.e., post-record) relists (their third relists overall). Jordan v. Fisher, 14-8035, 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 among the counsel to the petitioner in this case.] And Foster v. Humphrey, 14-8349, asks whether the “Georgia courts err[ed] in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case.”

We were briefly excited when Davis v. Michigan, 14-8106, and Carp v. Michigan, 14-824, were relisted last week. Because both ask whether Miller v. Alabama (holding that the Eighth Amendment prohibits juvenile homicide offenders from being sentenced to life without parole) applies retroactively, they should have just been holds for Montgomery v. Louisiana, 14-280, which the Court granted to resolve that question. Thus, when the Court relisted them last week, we thought the Court might be considering a grant on Davis’s second question — “[whether] the Eighth Amendment’s ban on cruel and unusual punishment forbid[s] sentencing a child to life without parole when that child has been convicted of felony murder despite not having killed or intended to kill.” Apparently not; this week finds them back on hold status. Cue sad trombone.

That clears the way for our discussion of this week’s newly relisted cases. Mercifully, there is only one. Campbell-Ewald Co. v. Gomez, 14-857, began last week among the lowly ranks of rescheduled cases but now has blossomed into a full-fledged relist. You’ll recall that the petitioner is an ad agency that was sued under the Telephone Consumer Protection Act for its text-message campaign undertaken for the U.S. Navy. Seeking to avoid an expensive class action, Campbell-Ewald offered to pay the respondent more than he would have been able to gain from litigation. The respondent, however, declined the offer; and the district court refused to declare that the offer had mooted the respondent’s claims. Nevertheless, the court granted summary judgment to Campbell-Ewald, holding that because the agency was acting as a Navy contractor, it was owed 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. Campbell-Ewald’s 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. (The Court considered the first two questions two Terms back in Genesis Healthcare Corp. v. Symczyk, but decided then that the mootness issue was not properly presented.)

Last (and, if the past is any guide, least), we’d be remiss if we neglected to say a word or two about rescheduled cases — the redheaded stepchildren of our weekly dispatch. As we noted last week, O’Keefe v. Chisholm, 14-872, has been rescheduled a second time, and is currently set for the May 14 Conference. O’Keefe, which stems from a Section 1983 suit brought by supporters of Wisconsin Governor Scott Walker against the Milwaukee district attorney, presents two questions: (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.”

There’s only one new rescheduled case this week: Luis v. United States, 14-419. After indicting Luis on charges of health care fraud, the government, in a contemporaneous civil action instituted under 18 U.S.C. § 1345, obtained an injunction prohibiting Luis from spending any of her own money, including “undisputedly untainted funds that she need[ed] to retain counsel in [her] criminal case.” “[T]here is no Sixth Amendment right to use untainted, substitute assets to hire counsel,” the trial court held – a holding which the Eleventh Circuit later affirmed. On cert., Luis’s petition asks whether “the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.”

Aaaaand, just like that, we only have seven more of these things to do. But who’s counting? At least we have a breather next week because there is no Conference today (and next week the Court goes to Thursday Conferences). Be sure to tune in the week of the 18th, when we’ll be back with more cash, prizes, and publically available information. Or at least one of those things.

Thanks to Ralph Mayrell and Conor McEvily for compiling and drafting this update.



(relisted after the March 27, April 3, April 17, April 24, and May 1 Conferences)


(relisted after the April 17, April 24 and May 1 Conferences)


(relisted after the April 17, April 24, and May 1 Conferences)


(relisted after the April 17, April 24, and May 1 Conferences)


(relisted after the April 24 and May 1 Conferences)


(relisted after the April 24 and May 1 Conferences)


(relisted after the April 24 and May 1 Conferences)


(relisted after the May 1 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 8, 2015, 12:18 PM),