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Relist Watch

John Elwood reviews Tuesday’s relisted cases.

These are tough times for those of us in the media business. Amid the unremitting, grim news of the decline of the American newspaper industry, and the auctioning-off of several well-established weeklies, comes this week’s tidings that the nation’s most venerable men’s magazine will no longer be publishing the very thing that made adolescent boys and dirty old men venerate it. If you think we’re taking longer than usual contriving a transition from flimsy excuse for an introduction to flimsy excuse for a blog post, wait no longer. With the disappearance of nudes from Playboy, it’s official: Relist Watch is now your guiltiest pleasure.

Let’s start with the old stuff — much of which has gone bad (as old stuff tends to do). Of last week’s eleven relists, four first-timers have passed their sell-by dates. Among them is LaChance v. Massachusetts, 14-1153, which asked whether a defendant who asserts ineffective assistance based upon his counsel’s failure to raise a structural error must show that he was prejudiced by his counsel’s ineffectiveness. Also consigned to the com-Post heap (Get it? Get it?), West v. United States, 14-9875, was denied on Tuesday, despite (because of?) the Solicitor General’s memo recommending that the Court grant the petition, vacate, and remand (GVR) in light of last Term’s Rodriguez v. United States. West asked whether the D.C. Court of Appeals, in determining whether an initially lawful traffic stop became an unlawful seizure, failed to focus on whether the police diligently pursued the purpose of the traffic investigation, and instead focused merely on the time it took police to conduct an unrelated investigation. Rounding out the week’s refuse are two petitions hailing from the Fifth Circuit, Williams v. United States, 14-10443, and Lopez v. United States, 14-10405 (the dreaded “penile plethysmograph” cases), both of which asked whether, under Article III, courts of appeals enjoy the jurisdiction to hear appeals of conditions of supervised release that are contingent on the discretionary decision of a probation officer or other professional. Our condolences to these departed relists.

The remaining seven of last week’s relists have managed to hold out for another week. Let’s start with the group’s veteran, four-time relist Mullenix v. Luna, 14-1143. That case, which stems from a district court’s refusal to grant summary judgment on qualified immunity grounds to a police officer who shot and killed a fleeing driver, asks two questions: (1) whether, when viewing the facts from his perspective, the officer acted reasonably under the Fourth Amendment; and (2) whether the law clearly established that this use of potentially deadly force was unlawful. We’re already two weeks into the new Term and haven’t yet been embarrassed by predicting a summary reversal and having the Court either grant or deny outright. But let’s not push our luck just yet: We’ll stand by our totally noncommittal observation that qualified immunity cases are frequently fodder for summary reversals.

Next up: two-time relist Jacobs v. Louisiana, 15-5004, asks whether the Eighth Amendment categorically prohibits sentencing a juvenile to life without parole. That’s essentially the same question presented in Connecticut v. Riley, 14-1472, and Jones v. Virginia, 14-1248, both of which were among last week’s first-time relists but which now appear to have become holds —suggesting that Jacobs might be the Court’s favored vehicle of the three. It bears mention that Jacobs’s QP is similar to, but distinct from, a case argued on Tuesday, Montgomery v. Louisiana, 14-280 – in which the Court is considering whether Miller v. Alabama (holding that mandatory life sentences for juveniles violates the Eighth Amendment) applies retroactively on collateral review. An amicus in Montgomery recommended (p.2) that the Court address that question and noted that Jacobs raised it.

If you aren’t nodding off yet, you will be by the end of this paragraph. Our next two two-time relists, both concerning the enhancement of patent damages, are “patently” boring. [Cue self-satisfied laughter.] The petition in Halo Electronics, Inc. v. Pulse Electronics, Inc., 14-1513, asks first, whether the Federal Circuit’s two-part test for enhancing patent infringement damages is valid in light of Octane Fitness, LLC v. ICON Health & Fitness, Inc., and second, whether it was error to rule that patent laws don’t apply to a contract entered into in the U.S. for the sale of goods abroad. Stryker Corp. v. Zimmer, Inc., 14-1520, likewise questions the validity of the Federal Circuit’s enhanced patent-infringement damages test, and also asks whether a district court has discretion to award enhanced damages “where an infringer intentionally copied a direct competitor’s patented invention, knew the invention was covered by multiple patents, and made no attempt to avoid infringing the patents on that invention.” Heady stuff.

The last of the week’s re-runs is New Hampshire Right to Life v. Department of Health and Human Services, 14-1273, which has now notched its second relist. There, New Hampshire Right to Life (presumably a subchapter of New Hampshire Right to Live Free or Die (Hard)) unsuccessfully sought to obtain records from HHS about a grant given to Planned Parenthood of Northern New England under the Freedom of Information Act. On cert., NHRtL (rhymes with “turtle”) poses a pair of questions: (1) “whether exemption 4 [of FOIA] permits nondisclosure due to speculative future competition and likelihood that disclosure would substantially harm the competitive position of a grant applicant”; and (2) “whether exemption 5 [of FOIA] shields documents and discussions about the agency’s public justification for prior decisions.” Seems like NHRtL’s hurdles might be overcome by good FOIA lawyas. [Cue more self-satisfied laughter.]

Moving along … We’ve got a pair of new relists for you this week. Burying the lede, let’s talk first about Voisine v. United States, 14-10154. If that caption sounds familiar to you, then you’re either one of the two petitioners or you’re lying. Voisine first came to the Court in OT 2012, under the nom de guerre Armstrong v. United States. After getting GVR’ed last year in light of United States v. Castleman, the First Circuit affirmed the petitioners’ convictions, denied rehearing, and now the case is back — with a new name that sounds like how Bernie Sanders might ask for eye drops in the unlikely event he ever wanted to “get the red out.” Both petitioners in Voisine were convicted of possession of a firearm in violation of 28 U.S.C. § 922(g)(9), making it unlawful for a person “who ha[s] been convicted in any court of a misdemeanor crime of domestic violence” to possess any firearm or ammunition. Voisine pleaded guilty to a state misdemeanor assault conviction, and subsequently came to the attention of federal authorities after “shooting an immature bald eagle.” (Shortly after hatching, the bird rolled its eyes at its parents and sullenly left the nest.) Petitioner Armstrong pled guilty to a state misdemeanor domestic violence assault charge and was later found to have firearms and ammunition in his home. On cert., both petitioners note that their Section 922(g)(9) predicate offenses did not establish any domestic relationship between themselves and their victims, and ask, among other things, whether “a misdemeanor crime with the mens rea of recklenssness qualif[ies] as a ‘misdemeanor crime of domestic violence’ as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).” Oh yes, and the petition also asks whether Section 922(g)(9) is unconstitutional under (among other things) the Second Amendment.

Which brings us to this week’s second new relist, Friedman v. City of Highland Park, 15-133. It concerns the constitutionality of a Highland Park, Illinois ordinance banning large-capacity magazines and “assault weapons” (a category that petitioners contend is “imaginary and pejorative”). In the wake of the ordinance’s passage in 2013, Dr. Arie S. Friedman, a  pediatrician, Navy veteran, and one-time state senate candidate with an appreciation for semi-automatic firearms, brought suit against Highland Park contending that the city’s ordinance infringed his Second Amendment right to keep arms commonly owned for lawful self-defense. The Illinois State Rifle Association brought the same claim on behalf of members residing in Highland Park. The U.S. District Court for the Northern District of Illinois granted summary judgment for Highland Park. On appeal, and over a dissent from Judge Daniel Manion, the Seventh Circuit affirmed, eschewing a “sliding scale of heightened scrutiny” that the circuit had set forth in a prior decision, and focusing instead on a three-part inquiry: (1) whether the ordinance bans weapons that were common at the time of ratification; (2) whether the ordinance bans weapons that bear some reasonable relationship to the preservation or efficiency of a well-regulated militia; and (3) whether law-abiding citizens retain adequate means of self-defense. Characterizing the lower courts’ Second Amendment jurisprudence in the wake of District of Columbia v. Heller as “a chaotic flurry of doctrinal tests that vary from circuit to circuit,” the Friedman petitioners argue that, because the Highland Park ordinance bans “some of the most commonplace firearms in the Nation” that are “typically possessed by law-abiding citizens for lawful purposes,” the ordinance is “categorically unconstitutional.” The Court has been a bit gun shy in recent Terms about cases seeking to clarify Second Amendment jurisprudence post-Heller. We’ll see if it takes up this one.

Before we let you off the hook here, let’s get in a word or two about the Court’s rescheduled cases — which are, to Relist Watch, what Relist Watch is to SCOTUSblog (viz., an afterthought). Last week we mentioned two newly rescheduled cases, Roman Catholic Archbishop of Washington v. Burwell, 14-1505, and Priests for Life v. Department of Health and Human Services, 14-1453, that addressed similar issues as those raised in Little Sisters of the Poor v. Burwell, 15-105 — the case challenging the government’s accommodation of religious objections to contraception coverage mandates under the Affordable Care Act. Both Roman Catholic Archbishop and Priests for Life have now been distributed for the October 30 Conference, at which the Court will also consider Little Sisters of the Poor. We’ll be keeping our beady collective eye on this ecclesiastical bunch.

Also receiving a new conference date this week is the rescheduled case DIRECTV, Inc. v. Roberts, 14-1524, involving a late fee on the Chief Justice’s cable bill.

And finally, Triple Canopy v. United States, ex rel. Badr, 14-1440, has received its first reschedule this week. Triple Canopy, a case from the Fourth Circuit involving the hot-button issue of implied false certification under the False Claims Act, appears to be waiting for a related case to catch up: Universal Health Services, Inc. v. United States and Massachusetts, ex rel. Escobar, 15-7, which appears to be on a glide path for the Court’s November 6 Conference. [John Elwood, who purportedly contributes to this column in various capacities, is counsel to amici supporting petitioner in Triple Canopy.]

And with that, your most displeasurable of guilty pleasures is over for the week. Tune in next week for more shopworn innuendo and rank speculation.

Thanks to Bryan Gividen (with coach Ralph Mayrell) and Conor McEvily for compiling and drafting this update. It Takes a Village to waste this much time.



[page]14-1143[/page] (relisted after the June 25, June 29, September 28, and October 9 Conferences)


[page]14-1273[/page] (relisted after the September 28 and October 9 Conferences)


[page]14-1513[/page] (relisted after the September 28 and October 9 Conferences)


[page]14-1520[/page] (relisted after the September 28 and October 9 Conferences)


[page]15-5004[/page] (relisted after the September 28 and October 9 Conferences)


[page]14-10154[/page] (relisted after the October 9 Conference)


[page]15-133[/page] (relisted after the October 9 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 16, 2015, 10:08 AM),