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Relist Watch

John Elwood (briefly) reviews Monday’s relisted cases.

It must be Relist Watch Week because all anybody has been able to talk about all week is predictions that didn’t pan out. The Court celebrated by releasing the order list Monday and then promptly taking the rest of the week off. Which means the dockets haven’t been updated and so we’re left to speculate about which cases actually have been relisted and which are just being held. Heck, we even resorted to trying the Court’s creaky telephonic docket updates, but those seem to be out of commission. Fortunately, we have had our best minds analyzing which of last week’s cases will be back on for the next Conference.

Let’s start with what we know for sure. Two of last week’s relists are headed to the Nerd World Series. Halo Electronics, Inc. v. Pulse Electronics, Inc., 14-1513, and Stryker Corp. v. Zimmer, Inc., 14-1520, were both granted after two relists. Both cases ask 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 if you were dumb enough to predict that this week’s grants would all be relists? That will go down in infamy like hoverboards. The Court granted without first relisting in Hughes v. PPL EnergyPlus, LLC, 14-614, and CPV Maryland, LLC v. PPL EnergyPlus, LLC, 14-623, a couple of cases involving federal preemption of a state electric-power subsidy system. While the Court didn’t relist first to make sure there were no vehicle problems, it did have the next-best thing: The Solicitor General’s recommendation as an amicus that the Court not take the case – which, recently, is all the green light the Court needs.

The rest involves a certain measure of speculation. In the festive spirit of Relist Watch Week, the Court appears not to have rejected any of last week’s relists. This means Mullenix v. Luna, 14-1143, probably continues to lead the league with five relists. You’re familiar with the questions now: (1) whether, when viewing the facts from the police officer’s perspective, an officer who shot at an escaping suspect from a highway overpass acted reasonably under the Fourth Amendment; and (2) whether the law clearly established that this use of potentially deadly force was unlawful. This case has been bouncing around for months as the Court tries to bait us into predicting summary reversal, but we are not going to give them the satisfaction.

The juvenile life-without-parole cases are something of a question mark. During oral arguments, the Court spent most of its time discussing whether it has jurisdiction to decide Montgomery v. Louisiana, 14-280, the case asking whether Miller v. Alabama applies retroactively on collateral review to people sentenced as juveniles to mandatory life without parole. The problem is that Montgomery comes from a state rather than a federal court and so the Supreme Court’s instructions on retroactive application are not really binding. The Court already is holding cases raising that issue from federal courts (and which thus avoid that issue), but we still dutifully check every new case raising Miller retroactivity that the Court doesn’t act on (and there were two more this week) to see if it might be the holy grail. Jacobs v. Louisiana, 15-5004, which likely picked up its third relist, asks the related larger question whether the Eighth Amendment categorically prohibits sentencing a juvenile to life without parole. Recall that Jacobs was relisted as two fellow travelers were held, but until the Court updates the dockets, we’re not sure that is still the case.

Our new favorite acronym, NHRtL, looks to have picked up a third relist in its attempt to obtain documents regarding a grant to Planned Parenthood from the Department of Health and Human Services. New Hampshire Right to Life v. Department of Health and Human Services, 14-1273, asks: (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.”

Meanwhile, Voisine v. United States, 14-10154, probably returns for a second time. The petitioners in Voisine challenge convictions under 28 U.S.C. § 922(g)(9), which makes it unlawful for someone “who ha[s] been convicted in any court of a misdemeanor crime of domestic violence” to possess any firearm or ammunition. The petition asks (1) whether “a misdemeanor crime with the mens rea of recklessness qualif[ies] as a ‘misdemeanor crime of domestic violence’ as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)” and (2) whether Section 922(g)(9) is unconstitutional under the Second Amendment. Friedman v. City of Highland Park, 15-133, also probably gets a second relist. That case involves a Second Amendment challenge to a Highland Park, Illinois ordinance banning large-capacity magazines and assault weapons. The Court has been avoiding Second Amendment cases for several Terms, but perhaps we’re due for a surprise.

So on to “new business.” Of the cases the Court did not act on this week, only one looks like a relist. The facts in Nichols v. United States, 15-5238, are so perfect for a cert. petition that it sounds like a law-school hypothetical. Lester Nichols and Ray Lunsford were registered sex offenders from the Kansas City area. Both men hopped a plane at Kansas City’s international airport and moved to the Philippines. Neither updated his sex offender registration after moving. Both were arrested and extradited to the United States, where they were convicted of violating the federal Sex Offender Registration and Notification Act (SORNA). Since Lunsford lived on the Missouri side of the Big Muddy, his case went to the Eighth Circuit, which held that a person who moved abroad did not need to update his sexual offender registration. However, Nichols lived on the Kansas side of the river, and the Tenth Circuit disagreed, holding that Nichols was required to update his registration when he abandoned his Kansas residence. Nichols’s request for rehearing en banc was denied with two dissenting opinions. Judge Lucero noted the split between the neighboring circuits, and Judge Gorsuch argued that SORNA violated the non-delegation doctrine by allowing the Attorney General to determine whether sex offenders who committed their violations before the enactment of SORNA fell under the Act’s requirements. Nichols’s petition asks: (1) whether SORNA requires a sex offender who resides in a foreign country to update the jurisdiction where he formerly resided, and (2) whether SORNA’s delegation of authority to the Attorney General to issue regulations regarding who would be prosecuted violates the non-delegation doctrine.

That’s all for today. Who says short can’t be good? Come back in two weeks when the Court is bound to get its revenge through an avalanche of new relists (and when all of these will be revealed to have been holds).

Thanks to Bryan Gividen for compiling the list and futilely trying to chase down updates and to Dmitry Slavin for drafting this post.


[page]14-1143[/page] (relisted after the June 25, June 29, September 28, October 9, and October 16 Conferences)


[page]14-1273[/page] (relisted after the September 28, October 9, and October 16 Conferences)


[page]15-5004[/page] (relisted after the September 28, October 9, and October 16 Conferences)


[page]14-10154[/page] (relisted after the October 9 and October 16 Conferences)


[page]15-133[/page] (relisted after the October 9 and October 16 Conferences)


[page]15-5238[/page] (relisted after the October 16 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 23, 2015, 1:05 PM),