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Relist Watch

John Elwood reviews Monday’s relisted cases.

For the first time since this crusty old man was on the bar mitzvah circuit, the United States has a Triple Crown winner. Meanwhile, on a stud farm somewhere in Kentucky, all the horses are tired of hearing the old blowhard going on about how things would have been different if he’d just been named California Chroam. But you don’t have to be an American Pharoah to taste victory. This was a good week for underdogs of every stripe. And since there is no greater longshot than a cert. petition, this should be a good week for relists.

Three of last week’s relists made it to the winner’s circle. First, Luis v. United States, 14-419, succeeded after three relists and a reschedule, becoming the rare rescheduled case to (eventually) find glory. Luis 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.” Second is two-time relist Shapiro v. Mack, 14-990, which asks whether, under the statute that provides for three-judge district courts for constitutional challenges to the apportionment of congressional districts or statewide legislative bodies (28 U.S.C. § 2284), a single judge can determine that a complaint is insubstantial and therefore that a three-judge panel is unnecessary not because the complaint is frivolous, but because it fails to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Third is another two-time relist, Tyson Foods, Inc. v. Bouaphakeo, 14-1146, which 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 Fair Labor Standards Act, 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 FLSA, when the class contains hundreds of members who were not injured and have no legal right to any damages. Now that is a case that is going to yield a lot of amicus briefs. Because the Court picked Tyson Foods as the vehicle to address these important class-action questions, that means Wal-Mart Stores, Inc. v. Braun, 14-1123, and Wal-Mart Stores, Inc. v. Braun, 14-1124, which raise similar questions and were rescheduled and relisted while awaiting Tyson’s arrival, head to the hold pile.

The Court has finally resolved our oldest relist, but probably not the way the petitioners were hoping. Jackson v. City and County of San Francisco, 14-704, was sent packing after being rescheduled once and relisted five times, but the petitioners did not leave empty handed: Justice Thomas filed an opinion dissenting from the denial of cert., which was joined by Justice Scalia. That case asked whether the Second Amendment bars a San Francisco ordinance requiring 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.

It’s Friday, which means it’s seriously time to clean out the fridge. For the third straight week, virtually all the relists remain in cold storage. Jordan v. Fisher, 14-8035, gains its fifth post-record relist and is just waiting for us to incorrectly predict that an opinion is brewing. [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, involving jurors receiving third-party religious advice on the death penalty, earned its fourth relist. Also back this week is the duo of high-profile three-time relists arising from Fifth Circuit opinions with Judge Garza dissents: Fisher v. University of Texas at Austin, 14-981 (the affirmative action case), and Currier v. Jackson Women’s Health Organization, 14-997 (the abortion case). The latter involves legislation requiring abortion providers to be outfitted as hospital-like “ambulatory surgical centers”; because the Fifth Circuit struck down the Mississippi law at issue in Jackson, and recently upheld a similar law in Texas, the Court is undoubtedly paying very close attention. Hittson v. Chatman, 14-8589, also earns its third relist (after being rescheduled once) and, aside from saying the case involves an insanely complicated habeas question, we’ll say no more about it in a feeble attempt to keep our dwindling audience. Finally, Dunn v. DeBruce, 14-807, picked up its second relist after the arrival of the record and after being rescheduled twice.

We have two baby relists to tell you about this week. First up is Dollar General Corp. v. Mississippi Band of Choctaw Indians, 13-1496. A Dollar General store located on the tribal land of the Mississippi Band of Choctaw Indians participated in an internship program where the tribe paid the wages of the young members involved. One of those interns accused a supervisor of sexual assault and the intern’s family sued Dollar General in tribal court. Dollar General argued that tribal courts have very narrow jurisdiction that generally does not include suits against non-members. The tribal court rejected that challenge. Dollar General then pursued an injunction in federal court. The district court determined that the tribal court had jurisdiction because the company entered into a “consensual relationship” with the tribe by taking on a member as an intern at a store on tribal land. The Fifth Circuit affirmed in a split decision, which, incredibly, did not involve a Judge Garza dissent, mainly because he was not on the panel.   Dollar General’s cert. petition asks “whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.” The Court called for the views of the Solicitor General, who recommended denial, arguing that the Fifth Circuit got the case right. The Court apparently needs to ruminate a little longer on the S.G.’s advice. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serve as co-counsel to the petitioners in this case.]

Our second new relist is Bruce v. Samuels, 14-844. It involves the interpretation of a provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915. The provision requires prisoners filing civil suits or appeals in forma pauperis in the federal courts to pay filing fees for their suits by paying an initial partial payment followed by twenty percent of their monthly income until the fee is paid off. The question is whether the statutory cap is twenty percent per case, meaning prisoners would have to pay forty percent for two suits and one hundred percent for five suits, or whether it is a hard cap of twenty percent regardless of the number of cases filed. The D.C. Circuit sided with the Fifth, Seventh, Eighth, and Tenth Circuits in adopting the per-case approach. The petitioner asks the Court to take the cumulative approach, which the Second and Fourth Circuits have adopted. If the Court takes this case, it will be their second foray into confusing numbers in the Prison Litigation Reform Act in two terms. The Court explained what constitutes a “third strike” under the act earlier this Term in Coleman-Bey v. Tollefson.

Last week, we noted that the Court had rescheduled two cases but had not assigned them a Conference date. Well, both of those cases were added to yesterday’s Conference. The first of these is Umaña v. United States, 14-602, which asks whether, during the sentencing phase of a capital trial, the government may seek to prove the aggravating factor that the defendant committed previous unadjudicated murders using hearsay statements to police of other suspects in those murders, without permitting the defendant to confront his accusers. The second is Kingdomware Technologies, Inc. v. United States, 14-916, which involves a provision of the Veterans Benefits, Health Care, and Information Technology Act of 2006 stating that contracting officers at the Department of Veterans Affairs “shall award” contracts on the basis of competition restricted to small businesses 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.” The case asks whether the Federal Circuit properly determined that the provision is discretionary. Both these reschedules will attempt to trace Luis’s journey from reschedule to relist to grant.

Only three more (scheduled) order lists remain, and there’s not much else left for the Court to do. Tune in next week to see if the Court regains its mean streak and starts rejecting relists again.

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, and June 4 Conferences)


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


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


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


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


(relisted after the May 28 and June 4 Conferences)


(relisted after the June 4 Conference)


(relisted after the June 4 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 12, 2015, 12:29 PM),