Breaking News

Relist Watch

John Elwood reviews Monday’s relisted cases.

With this week’s passel of cultural/recreational/legal milestones, you’d almost be forgiven for forgetting that the Court issued orders on Monday — and, by implication, relists. We say “almost” because we here at Relist Watch are not the forgiving type.

If we seem dour, it’s because this was on net a bad week. The “good news” is that the Court resolved three of its eleven outstanding relists this week. The bad news is that the Court replaced those three relists with . . . four new relists. Hopes, deleted.

Both cases to depart this vale did so over protests from members of the Court. The order denying cert. in Manzano v. Indiana, 14-631 — which asked whether, when a criminal defendant seeks to vacate a guilty plea on the ground of ineffective assistance of counsel, the defendant must establish prejudice by showing that he would have been acquitted — was tersely annotated, “Justice Sotomayor dissents.” Justice Alito was equally taciturn dissenting in County of Maricopa v. Lopez-Valenzuela, 14-825, which sought review of the Ninth Circuit’s decision striking down Arizona’s Proposition 100 and holding that a denial of bail is permissible only after individualized assessment of flight risk or future dangerousness. Justice Thomas (joined by Justice Scalia) was chattier. He declared that the denial of cert. in that case reflected “insufficient respect to the State of Arizona, its voters, and its Constitution,” and that the Court’s “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

Even the lonely case that “won” last week’s relists was a bit of a downer. The Court summarily reversed in yet another qualified immunity case, Taylor v. Barkes, 14-939. Taylor, you’ll recall, arose from a Section 1983 suit filed by the family of an inmate who killed himself while in detention, claiming that his Eighth Amendment rights were violated when prison officials failed to properly implement adequate suicide prevention protocols. The district court denied the officials qualified immunity and the Third Circuit affirmed. In a per curiam opinion, the Supreme Court reversed, holding that the purported right — “an incarcerated person’s right to the proper implementation of adequate suicide prevention protocols” — was not clearly established at the time of the inmate’s death because “no precedent on the books would have made clear to petitioners that they were overseeing a system that violated the Constitution.”

Back to spend another week seeking to emanate from the penumbras of the Court’s shadow docket are eight relisted cases which, for various reasons, we’re going to move through quickly. Jackson v. City and County of San Francisco, 14-704, this week’s relist champion, earned its Jackson 5(th) relist. Petitioners ask whether the Second Amendment bars 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. Moving into second place with four post-record relists is Jordan v. not *that* Fisher, 14-8035, which 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.] We’ll skip the ritual incantations about how an opinion surely must be circulating in at least one of these cases.

A pair of three-time relists are still hanging around this week. Joyner v. Barnes, 14-395, a state-on-top habeas case involving jurors who received third-party religious advice on the death penalty, 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[.]’” And Luis v. United States, 14-419, three-time relist and quondam rescheduled case, 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.”

The remaining foursome of returning cases all notched their second relists and are addressed below in a completely random order that coincidentally matches popular interest in them. Fisher v. University of Texas at Austin, 14-981, asks whether the Fifth Circuit’s endorsement of UT’s use of race in undergraduate admissions can be sustained under the Court’s decisions interpreting the Equal Protection Clause, including the one issued two Terms ago in a case with a familiar name, Fisher v. University of Texas at Austin. Currier v. Jackson Women’s Health Organization, 14-997, involves a challenge to a Mississippi law requiring doctors who perform abortions to have admitting privileges at a local hospital. It asks (1) whether the Due Process Clause requires Mississippi to exempt physicians at its lone abortion clinic from complying with a health regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether the provision imposes an undue burden under Planned Parenthood of Southeastern Pennsylvania v. Casey regardless of the availability of abortion services in adjoining states. Such laws are increasingly common; it will be interesting to see whether the Court wants to wade into the abortion thicket again. Shapiro v. Mack, 14-990, concerns 28 U.S.C. § 2284, which requires a three-judge district court to hear cases challenging the constitutionality of congressional-district apportionments — that is, unless the single judge to whom the case is initially referred determines that three judges are not required. Its petition questions whether a single judge can determine that a Section 2284 complaint is insubstantial not because it is frivolous, but because it fails to state a claim under Rule 12(b)(6) of the eff-are-see-pee. And finally, Hittson v. Chatman, 14-8589, involves a fairly thorny habeas procedural issue that, if you’re a real sucker for that sort of thing, you can read more about on your own d**n time. Hittson asks, among other things, “[w]hether the Eleventh Circuit has correctly determined that this Court’s decision in Harrington v. Richter overruled sub silentio the holding of Ylst v. Nunnemaker, that ‘where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.’”

Turning at last to this week’s new relists, we note all of them were at one time rescheduled. Read into that what you will. It appears that this underappreciated (and usually unsuccessful) category of cases is finally getting its due.

First up, a case that, after a delayed-record relist and two reschedules, has now earned its first legit relist. Dunn v. DeBruce, 14-807, is a state-on-top capital habeas case from the state that imposes more death sentences per capita than any other. In 1991, respondent DeBruce (soon to be known as DeCaitlyn) shot and killed a man during a gang robbery of an Auto Zone. DeBruce was tried and convicted of capital murder; and, although his mother testified that there was “good” in him, and made passing mention of his unidentified “mental disorder,” the jury recommended, and the judge imposed, a death sentence. In state post-conviction review, DeBruce’s ineffective assistance of counsel claim went nowhere, and the federal district court denied his habeas petition. But on appeal, a divided panel of the Eleventh Circuit granted relief. Over a full-throated dissent by Judge Tjoflat (tweaking the majority for overturning “a reasoned State court decision . . . on little more than a hunch”), the court concluded that counsel’s failure to conduct a more thorough background investigation of DeBruce was constitutionally deficient, and that the state court’s contrary conclusion was objectively unreasonable. In its petition, Alabama asks (1) whether the state courts were objectively unreasonable when they held that DeBruce failed to establish that his counsel performed deficiently at his trial’s penalty phase; and (2) whether the state courts were objectively unreasonable when they held that DeBruce had not been prejudiced by his counsel’s performance.

If this week’s second and third new relists, Wal-Mart Stores, Inc. v. Braun, 14-1123, and Wal-Mart Stores, Inc. v. Braun, 14-1124, seem oddly similar, the resemblance does not stop at the superficial: Even their cert. petitions are materially identical. The petitions involve cases brought by former Wal-Mart employees who claimed that their store violated its contractual obligations and Pennsylvania wage laws by requiring employees to work off the clock (i.e., without pay) and through paid rest breaks. Over Wal-Mart’s due process objections, the state trial court certified a class of 187,000 Wal-Mart employees under Pennsylvania state law, and consolidated the cases for trial. In support of their motion for class certification, and to prove their claims, plaintiffs offered the testimony of two statisticians who extrapolated from data involving a subset of class members and a portion of the class period to opine about all 187,000 class members throughout the eight-year class period. After the jury awarded a total judgment of $187 million, Walmart unsuccessfully moved to set aside the verdict and decertify the class on federal due process grounds.

The Pennsylvania Superior Court rejected Wal-Mart’s federal due process argument. On discretionary review, the Pennsylvania Supreme Court reformulated Wal-Mart’s question presented to reframe the issue as one of Pennsylvania state law rather than federal due process. “In an abundance of caution,” Wal-Mart has filed two “materially identical petitions for certiorari” — one seeking review of the superior court decision and one seeking review of the supreme court decision — “due to the absence of authority regarding the court to which a petition should be directed where a state supreme court denies review of a federal question passed upon by a state intermediate appellate court but issues an opinion on a state-law question.” Both petitions ask whether the Fourteenth Amendment’s Due Process Clause “prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.”

This week’s case de résistance raises essentially the same question presented as the Wal-Mart cases — which you might think would favorably affect the length of the forthcoming discussion. Nope. The plaintiffs in Tyson Foods, Inc. v. Bouaphakeo, 14-1146, hourly workers at an Iowa pork-processing plant, sought overtime compensation under the Fair Labor Standards Act (FLSA) due to Tyson’s failure to compensate them for “donning” and “doffing” personal protective equipment (i.e., hard hat, hairnet, ear protection, frock, plastic belly guards, mesh sleeves, plexiglass arm guards, polar gloves, polar sleeves, scabbards, steels, and/or costume pig snout, depending on what role they play in cutting the pork). After the class was certified, Tyson sought to decertify the class as an impermissible “trial by formula” under the recently issued Wal-Mart Stores, Inc. v. Dukes, objecting that donning/doffing time was calculated using averages of a small sample of employees and assumed all employees spent the average amount of time donning/doffing their equipment. The district court denied Tyson’s motion to decertify, the plaintiffs won nearly $3 million in damages, and the Eighth Circuit affirmed over the dissent of Judge Beam. Tyson’s cert. petition asks (1) whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the FLSA, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

Before we move on, let us all doff our hats to the law clerks who got assigned these behemoth class-action petitions just as their year is supposed to be getting easier. Huzzah!

Let’s just skip the rescheduled cases. Let’s not forget the rescheduled cases. First up, Self-Insurance Institute of America v. Snyder, 14-741, originally scheduled for the May 28 Conference, has now been distributed for the June 18 Conference. At issue in the case is (to quote from its cert. petition’s QP) “the quagmire that is ERISA preemption.” Since you’ve already endured a lot today, we won’t wade through that quagmire unless (until?) the case is actually relisted. Until then, we’ll leave you with its two QPs: (1) “[w]hether 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 ‘relates to’ ERISA benefit plans and is therefore preempted under Section 514(a);” and (2) “[w]hether the broad preemption language in Section 514(a) 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.”

On Tuesday, the Court rescheduled two more cases, although neither has been given a Conference date. After the petitioner in Umaña v. United States, 14-602, was tried and convicted of killing two men during an argument over a restaurant jukebox, a federal district court bifurcated the capital sentencing hearing. At the first “eligibility” phase, the jury found two statutory aggravating factors; and at the second “selection” phase, the government sought to prove additional aggravating factors by introducing hearsay testimony indicating that Umaña had committed three murders for which he had never been convicted. Umaña was ultimately sentenced to death. On cert., his petition asks “[w]hether, at capital sentencing, the government may seek to prove the aggravating factor that the defendant committed pervious unadjudicated murders through hearsay statements to police of other suspects in those murders, without permitting the defendant to confront or cross-examine his accusers.”

As for our last rescheduled case, the petitioner in Kingdomware Technologies, Inc. v. United States, 14-916, seeks review of a Federal Circuit decision deeming “discretionary” a provision of the Veterans Benefits, Health Care, and Information Technology Act of 2006, which in turn provides that contracting officers at the Department of Veterans Affairs “shall award” contracts on the basis of competition restricted to small business owned by veterans whenever there is a “reasonable expectation” that two or more such businesses will bid for the contract at “a fair and reasonable price that offers best value to the United States.” Got it?

And with that, we’re done. Please bear with us as we slog through the Court’s last four scheduled Conferences of the Term, and hopefully shed the dirty dozen relists along the way.

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



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


(relisted after the April 24, May 1, May 14, May 21, and May 28 Conferences)


(relisted after the May 14, May 21, and May 28 Conferences)


(relisted after the May 14, May 21, and May 28 Conferences)


(relisted after the May 21 and May 28 Conferences)


(relisted after the May 21 and May 28 Conferences)


(relisted after the May 21 and May 28 Conferences)


(relisted after the May 21 and May 28 Conferences)


(relisted after the May 28 Conference)


(relisted after the May 28 Conference)


(relisted after the May 28 Conference)


(relisted after the May 28 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 5, 2015, 10:32 AM),