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Anticlimax Watch

John Elwood reviews Monday’s relisted cases.

Summer is officially here. Justices are streaming out of town for their vacations; visions dance in law clerks’ heads of using their modest clerkship bonuses to purchase a few longdeferred necessities; and your friendly neighborhood Relist Watchers are drafting one last full-sized post. Aside from one short mop-up post that we expect to file after the Court’s gavel bangs one last time, this is it. Fortunately we have two ERISA cases to talk about, so we’ll be going out with a bang.

As always, we begin with the Old Business. There is enough blogosphere blather about the Federal Circuit’s reversal rate in patent cases that it’s good to put that nonsense behind us and turn to a completely different subject: Whether the Federal Circuit has messed up government contracts law. Kingdomware Technologies, Inc. v. United States, 14-916, which was granted this week after being rescheduled once and relisted once, involves a provision of the Veterans Benefits Act that says that contracting officers “shall award contracts on the basis of competition restricted” to small, veteran-owned businesses if there is “reasonable expectation[] that two or more” such businesses “will submit” fair and reasonable offers. The case asks whether that language is mandatory or discretionary.

This week, the Court finally cleared out some of its relists, but it’s interesting to note that all of the denials came from among the first-time relists. We’ll keep these brief because we know you have better things to do, by which we mean, anything. Although Kingdomware achieved glory coming from the generally unsuccessful ranks of rescheduled cases (like Luis v. United States, 14-419, before it), Umaña v. United States, 14-602, was not so lucky. Umaña’s petition argues that the government improperly used hearsay testimony about other homicides at sentencing without permitting him to confront his accusers. Yet another Johnson v. United States, 14-1006, asked whether restitution is a criminal penalty subject to Sixth Amendment charging and jury-trial requirements. The denial in Ford Motor Company v. United States, 14-1085, marks the end of that venerable company’s decades-long effort for the return of interest on funds it paid for taxes Uncle Sam wrongly claimed it owed. And last, Carlton v. United States, 14-8740, involved application of plain error to factfinding in criminal sentencing. The petitioner in Carlton at least got the traditional consolation prize – a separate opinion explaining the error by the court below; although Justice Sotomayor (joined by Justice Breyer) wasn’t moved to dissent, she filed an opinion “respecting the denial of certiorari” explaining the error in the Fifth Circuit’s application of plain error.

Aside from those cases, everything old is new again. Our reigning relist king is Jordan v. Fisher, 14-8035, which clocked its seventh relist after the delayed arrival of the record (eighth relist overall). The petition 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.] Joyner v. Barnes, 14-395, follows close behind with six relists. It asks whether “the Fourth Circuit contravene[d] § 2254 (d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied ‘clearly established’ law when they held that third-party religious discussions with jurors did not concern ‘the matter[s] pending before the jury[.]’” The Court seems to be daring us to go out on a limb and predict an opinion here.

Meanwhile, the closely watched Fisher v. University of Texas at Austin, 14-981, picked up its fifth relist; the case involves an Equal Protection Clause challenge to UT’s use of race in undergraduate admissions. Currier v. Jackson Women’s Health Organization, 14-997, which is also on five relists, involves the constitutionality of Mississippi legislation requiring its lone abortion clinic to comply with health regulations for outpatient surgical facilities, and requiring physicians working there to have admitting privileges at a local hospital. The case has been hanging around long enough that a challenge to a similar Texas law formally arrived at the Court this week; perhaps the Justices will wait to consider both petitions together. Finally, Maryland v. Kulbicki, 14-848, earned its second relist. It asks whether an appellate court violates Strickland v. Washington when it assesses the efficacy of trial counsel’s performance based on scientific research done years after the trial.

Unless the Court abandons its policy of routinely relisting cases before granting, or there are new relists Monday morning that are promptly granted after a quickie mop-up Conference (as I write this, the Court’s schedule during the last days before recess is still in flux), these next five cases might be the last ones with a shot at a grant before the Long Conference. Torres v. Lynch, 14-1096, involves the definition of “aggravated felony” in the Immigration and Naturalization Act, which is defined to include, as relevant here, certain crimes as “described in” certain provisions of federal law.   Torres, a permanent resident alien, was convicted of arson under New York law, and he argues that does not qualify as an “aggravated felony” because unlike the crime of arson “described in” federal law, it includes no interstate commerce element. Torres is on the unfavorable side of a six-to-one split.

Musacchio v. United States, 14-1095, asks what happens when a jury instruction in a criminal case includes more stringent elements than the statute and the indictment actually require. Musacchio was tried for hacking into his former employer’s email after leaving to form a rival company. The relevant statute makes it a crime to either (1) access a protected computer without authorization or (2) exceed authorized access to a protected computer. The original indictment charged Musacchio with conspiracy to do both. A second superseding indictment only charged him with accessing a computer without authorization. However, the jury instruction, to which the government did not object, stated that to obtain a conviction the government must prove that Musacchio both (1) accessed a protected computer without authorization and (2) exceeded authorized access to a protected computer. Oops. The jury convicted him anyway. In his appeal, Musacchio conceded that there was sufficient evidence to prove that he committed the crime he was charged with but claimed that there was insufficient evidence to convict him of exceeding authorized access. He argued that the jury instruction was the law of the case and therefore his guilt must be determined against all those elements. He also attempted to raise a statute of limitations argument for the first time. The Fifth Circuit held that the law-of-the-case rule does not apply to patently erroneous jury instructions when the proper elements were stated in the indictment. It also held that Musacchio had waived his statute-of-limitations defense by failing to raise it at trial. Musacchio claims there are circuit splits on both issues.

Our last relist on the criminal side is Nguyen v. North Dakota, 14-973, a summertime sequel. Two years ago, the Court decided Florida v. Jardines, holding that a dog sniff at the front door of a private house is a search under the Fourth Amendment. Nguyen asks the Court to expand Jardines to include the hallways and common areas of a locked private apartment building. Undercover officers entered one such building, where Nguyen lived, based on a month-old tip that someone in an unidentified apartment in the building had drugs. They gained entry using the time-honored method of waiting for someone to enter or leave the building, then grabbing the door before it closed. Their dog alerted at Nguyen’s door, and when police returned with a search warrant, they found large amounts of marijuana and cash. The trial court suppressed the evidence, holding that the officers were trespassing in the building and therefore conducting an improper warrantless search. The North Dakota Supreme Court reversed, holding that Nguyen had no reasonable expectation of privacy in the building’s common areas. Nguyen, defending the rights of apartment dwellers everywhere, asks under whether officers conduct a search when they trespass in common areas of locked apartment buildings to look for evidence of criminal activity.

We promised you two ERISA cases, and we always deliver, so go grab a third cup of coffee. Self-Insurance Institute of America, Inc. v. Snyder, 14-741, comes out of the Sixth Circuit, which noted that the case deals with “the quagmire that is preemption.” It involves a challenge to a Michigan law imposing a one-percent tax on all paid claims by carriers or third-party administrators to health-care providers for services rendered in Michigan for Michigan residents. The law also requires the administrators to submit quarterly returns to the Michigan Department of the Treasury and to keep relevant records. Self-Insurance of America, Inc. sued, claiming that the law is preempted by ERISA, which expressly supersedes all state laws related to employee benefit plans regulated under the federal scheme. The district court dismissed the case and the Sixth Circuit affirmed, holding that the tax doesn’t interfere with core ERISA functions. The petition asks “[1] Whether a state law that imposes new reporting, payment, recordkeeping, and audit requirements on ERISA plan administrators that arise directly from their processing of welfare benefit claims pursuant to ERISA ‘relate[s] to’ ERISA benefit plans and is therefore preempted under [ERISA]; and [2] Whether the broad preemption language in [ERISA] can be judicially narrowed to accommodate a presumption against preemption of newly minted state laws that seek to exploit the core functions of ERISA plan administrators.” It has got to be daunting for a law clerk to pick up a petition where the first words you read are “Self-Insurance Institute of America.” Was “Kingdomware” already taken?

Next we’ll move east to the Second Circuit. Gobeille v. Liberty Mutual Insurance Co., 14-181, is a challenge to a Vermont law requiring health-care payers to provide claims data and related information to the state’s health-care database. Liberty Mutual claims, and stop us if you’ve heard this before, that ERISA preempts the law. The district court granted summary judgment in Vermont’s favor, but the Second Circuit reversed in a two-to-one decision, in spite of an amicus brief filed in that court by the United States that sided with Vermont. After Vermont petitioned for cert., the Court called for the views of the Solicitor General, who argued that the issue is important and that the Second Circuit got it wrong but also that there is no circuit split and the Court should let the issue continue to percolate in the courts of appeals. Considering the two ERISA cases the Court is mulling, the Justices may disagree. Time will tell.

Finally, we mentioned three rescheduled petitions last week but noted that they did not yet have new Conference dates. They didn’t have to wait long, as all three are on this week’s calendar. Friedrichs v. California Teachers Association, 14-915, is a First Amendment challenge to a California “agency shop” law requiring most of its public school teachers to contribute to the local teachers’ union. Petitioners hope this case will be a sequel to Knox v. Service Employees International Union, Local 1000 and, if granted, could be a blockbuster. The other two are the Speech or Debate Clause cases. Renzi v. United States, 14-1082, asks whether the Speech or Debate Clause protects (1) legislative fact-finding by a member of Congress and (2) the actions of a member of Congress in developing, evaluating, and drafting legislation prior to the formal introduction of a bill. Renzi also asks (3) whether a member of Congress can waive the protections of the Speech or Debate Clause only by explicitly and unequivocally renouncing them. His co-defendant, James W. Sandlin, a private citizen, argues in Sandlin v. United States, 14-1083, that he should benefit if Renzi wins as they were tried together using the same evidence.

We’ve had a lot of fun together this term. We wrote poetry, survived the long winter, and even chased down the elusive Bobby Chen. But for those of you who wish to postpone confronting the emptiness of your existence, chin up: If the past is any guide, there will be one last short-ish Relist Watch after the mop-up Conference. Otherwise, you are released on your own recognizance for your own well-deserved vacation.

Thanks to Ralph Mayrell and Dmitry Slavin for compiling and drafting this update.


(relisted after the April 17, April 24, May 1, May 14, May 21, May 28, June 4, June 11, and June 18 Conferences)


(relisted after the May 14, May 21, May 28, June 4, June 11, and June 18 Conferences)


(relisted after the May 21, May 28, June 4, June 11, and June 18 Conferences)


(relisted after the May 21, May 28, June 4, June 11, and June 18 Conferences)


(relisted after the June 11 and June 18 Conferences)


(relisted after the June 18 Conference)


(relisted after the June 18 Conference)


(relisted after the June 18 Conference)


(relisted after the June 18 Conference)


(relisted after the June 18 Conference)

Recommended Citation: John Elwood, Anticlimax Watch, SCOTUSblog (Jun. 26, 2015, 4:08 PM),