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Relist Watch – OT2015 Edition

John Elwood reviews this week’s relisted cases.

Welcome back to another season of Relist Watch!  For those of you who are only now stumbling on this feature because of a Google search gone horribly wrong, here is what we do:  When a case under consideration at the Justices’ private Conference gives them such warm fuzzies that they put the case back on the calendar for further consideration at the next Conference, we write about it until your eyes glaze over.  If that strikes you as a colossal waste of time, you understand matters perfectly.  Some of these cases turn out to be huge winners, others turn out not to matter.  Although the Court hasn’t said so in as many words, it is widely understood that the Court relists cases that it has tentatively decided to grant certiorari to review, and uses the extra time to perform a check for vehicle problems that might keep the Court from resolving the question presented.  For that reason, since February 2014, almost every case that the Court has granted has been relisted at least once, with the main exception being cases granted out of the late-September “Long Conference” (presumably because during the summer, the Court has enough extra time that the relist isn’t necessary).  Mind you, the Justices also relist cases for a number of other reasons, including to give them time to write an opinion summarily reversing a lower-court judgment or dissenting from the Court’s decision not to review it.  Got it?  This mind-numbing paragraph is as interesting as this column will ever get.

The beginning of October Term 2015 brought a rash of news about changes to Court practices.  The Court will now actually disclose when it is revising its opinions, will archive web pages mentioned in opinions to avoid “link rot,” and has eliminated our day job as professional line-standers.  Since standing around doing nothing is what we excel at, Relist Watch HQ has been relocated from the bar line to Franklin Barbecue in Austin.  However, the most significant change this Term is one we experts at Relist Watch have scooped the lamestream media on:  The Court’s case distribution schedule traditionally has indicated dates on which the clerk’s office distributes petitions for which a filing fee has been paid (so-called “paid” petitions) and those in which the Court has waived the fee because the petitioner lacks the ability to pay (in forma pauperis or IFP petitions).  Thus, for years, the case distribution schedule has consisted exclusively of distribution of cases on these “paid lists” and “IFP lists.”  This year, the Court quietly added additional distribution dates which are labelled neither “paid” nor “IFP.”  Through keen discernment, painstaking intelligence gathering, and also emailing the Court’s Public Information Office about it, we have learned those additional distribution dates are for relists.  So the practice of cycling already-considered cases back around for one last check been formalized on the Court’s distribution schedule.

On to old business.  For the second year in a row, none of the grants out of the Long Conference were relists, so we won’t mention them.  However, the Court granted four relisted cases from our last installment before going on vacation.  Belated congratulations to one-time relists Menominee Indian Tribe of Wisconsin v. United States, 14-150; potential blockbuster Friedrichs v. California Teachers Association, 14-915; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, 14-1132; and Franchise Tax Board of California v. Hyatt, 14-1175.  One relisted petitioner won an even rarer prize:  Maryland v. Kulbicki, 14-848, was summarily reversed after four relists.

That leaves just two stragglers from last season.  The first is three-time relist Mullenix v. Luna, 14-1143, which spent the summer at One First Street.  When officers attempted to arrest Israel Leija, Jr., at a Sonic in Tulia, Texas, he concluded that the best way to resolve his predicament was to drive off at high speed and telephone the police to tell them (falsely) that he was armed and would shoot officers.  One local trooper, Chadrin Mullenix, in turn concluded that the best way to resolve the situation was to disable Leija’s car by shooting it from an overpass.  Instead, Mullenix accidentally shot the actually unarmed Leija in the neck, killing him.  Leija’s family sued.  The district court refused to grant Mullenix summary judgment based on qualified immunity, finding that there was a genuine issue of material fact over whether Mullenix had cause to believe that there was an immediate threat of serious physical harm or death.  A divided Fifth Circuit affirmed.  Mullenix’s petition asks (1) whether, when viewing the facts from his perspective, Mullenix acted reasonably under the Fourth Amendment; and (2) whether the law clearly established that this use of potentially deadly force was unlawful.  Qualified immunity cases are frequently fodder for summary reversals; we’ll see if Mullenix is one of them.

In addition to relisting cases after considering them at Conference, the Court also sometimes “reschedules” them; usually (but not always, which is why we said “usually”) before the full Court has considered them at Conference.  Frequently, the Court does that to allow another case raising a similar issue to “catch up.”  One prior relist that has now been rescheduled is the much-watched abortion case Currier v. Jackson Women’s Health Organization, 14-997, which when we last saw it had been relisted six times.  It has been rescheduled but no new conference date has been set yet.  If you can’t remember our previous discussions of Currier, it is a constitutional challenge to a Mississippi law requiring the state’s 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.  A challenge to a similar Texas law arrived at the Court in June.  The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote.  The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.”  Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.

Joining Mullenix is an entire crowd of brand-spankin’ new relists.  First up is LaChance v. Massachusetts, 14-1153, which gains its first relist since the Court called for a response.  The trial court judge closed the courtroom while empaneling the jury for LaChance’s rape trial.  Although that violated LaChance’s Sixth Amendment right to a public trial, his counsel did not object at trial and his appellate counsel did not raise the issue on direct appeal.  The Massachusetts courts denied LaChance’s motion for a new trial based on ineffective assistance of counsel.  Because wrongly closing a trial is so-called “structural” error (i.e., reversal is required without inquiring into whether the error caused prejudice), LaChance’s petition asks whether a defendant asserting ineffective assistance based upon his counsel’s failure to raise a structural error must show that he was prejudiced by his counsel’s ineffectiveness or whether prejudice is presumed.

Next we enter the exciting world of patent law with Halo Electronics, Inc. v. Pulse Electronics, Inc., 14-1513.  Halo Electronics, which astonishingly enough is not that Halo, sued Pulse for infringing its patents for surface mount transformers and won $1.5 million.  On appeal, the Federal Circuit upheld the judgment in Halo’s favor, but held that U.S. patent laws don’t apply to the portion of the goods that were sold internationally even if negotiations for the sales occurred in the United States.  The Federal Circuit also refused Halo’s request for increased damages and attorney’s fees, determining that Pulse’s infringements were not willful.  However, in a concurring opinion, two of the judges suggested that the Federal Circuit should reevaluate its standard for imposing enhanced damages in light of the Supreme Court’s recent decision in Octane Fitness LLC v. Icon Health & Fitness, Inc., which eased the burden for imposing attorney’s fees.  Halo’s petition asks whether the Federal Circuit’s test for enhancing damages is no longer valid in light of Octane Fitness.  The petition also asks whether the Federal Circuit erred in ruling that patent laws don’t apply to a contract entered into in the U.S. for the sale of goods abroad.  Pulse filed a cross-petition as well, but the Court has already rejected it.

Based on that, the next case should sound familiarStryker Corp. v. Zimmer, Inc., 14-1520, similarly asks two questions about enhanced patent damages.  First, “[w]hether the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases”; and, second, “whether a district court has discretion under 35 U.S.C. § 284 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.”

Since we don’t want to take too much time away from your hobbies, we’ll do the next three cases together.  Recall that the Court in Miller v. Alabama held that the Eighth Amendment prohibited mandatory sentences of life imprisonment for juveniles.  Connecticut v. Riley, 14-1472, Jacobs v. Louisiana, 15-5004, and Jones v. Virginia, 14-1248, are Eighth Amendment challenges to life sentences for juveniles.  Ackeem Riley successfully convinced the Supreme Court of Connecticut that his punishment of three consecutive sentences adding up to one hundred years’ imprisonment violated the Eighth Amendment.  In its decision, the state supreme court established a presumption against imposing a life sentence without parole on a juvenile.  Lawrence Jacobs Jr., however, could not convince the Louisiana Court of Appeals that a sentence of two consecutive life sentences without parole is unconstitutional in a situation in which the prosecution did not need to prove that the defendant actually killed or intended to kill.  And Donte Lamar Jones similarly failed to convince the Virginia Supreme Court that the Virginia sentencing scheme, which allows life without parole for juveniles but gives trial courts the authority to suspend the sentence, is unconstitutional.  It is unclear how these cases will interact with this Term’s Montgomery v. Louisiana, 14-280, in which the Court will consider whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.  An amicus brief in Montgomery asks the Court to decide the bigger question of whether sentencing juvenile offenders to life imprisonment without parole violates the Eighth Amendment.  Before we move on though, we want to give a quick fashion tip to the Louisiana prosecutors: Wearing ties with pictures of nooses on them during a murder case went out of style in the 80s.

New Hampshire Right to Life v. Department of Health and Human Services, 14-1273, sounds like another dull, uncontroversial abortion case.  But this one has a twist that may require the Court to venture beyond the snoozy, largely ministerial task of mechanically applying the universally accepted and ambiguity-free “undue burden” test – it implicates a sexy, cutting-edged Freedom of Information Act dispute!  New Hampshire Right to Life filed a FOIA request asking for records of a grant given to Planned Parenthood of Northern New England.  HHS withheld and redacted documents under FOIA’s exemption 4, which protects trade secrets and confidential commercial and financial information, and exemption 5, which protects certain inter- and intra-agency memoranda.  The First Circuit sided with the government, holding that the withheld information is confidential under exemption 4 because Planned Parenthood may be involved in future competitive grant applications.  New Hampshire RtL, very much not to be confused with ROTFL, filed a cert. petition asking the Court to decide (1) “whether exemption 4 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 shields documents and discussions about the agency’s public justification for prior decisions.”  But the dull abortion overlay may yet cool interest in an otherwise hot-button dispute about the scope of FOIA exemptions 4 and 5 of the sort that invariably brings protesters out in force.

Our next petition, West v. United States, 14-9875, may not last long in light of the Solicitor General’s response to it.  Police in the District of Columbia made a routine traffic stop of Bernard West.  They asked him to step out of the car, patted him down, and asked him if they could search the car.  After obtaining his permission, they found PCP and arrested West.  West unsuccessfully attempted to suppress the fruits of the search, arguing that the police did not diligently pursue the goals of the traffic stop.  The D.C. Superior Court and D.C. Court of Appeals determined that the search was legal.  West’s petition argues that the D.C. decisions conflict with the Court’s precedent.  Instead of a full-blown brief, the Solicitor General filed a two-page memorandum asking the Court to grant, vacate, and remand in light of Rodriguez v. United States, in which the Court recently held that a “seizure justified only by a police-observed traffic violation . . .  ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”

Our final relists are twin petitions out of the Fightin’ Fifth Circuit: Williams v. United States, 14-10443, and Lopez v. United States, 14-10405.  Williams and Lopez were convicted of possessing child pornography.  Both were sentenced to prison time followed by a long period of supervised release.  The supervised release conditions require Williams and Lopez to submit to various psychological testing, including testing using a penile plethysmograph.  Williams and Lopez do not explain what this test entails, but we urge you to resist the temptation to Google it at work, because our IT may never stop giving us funny looks.  Both men appealed this condition of their supervised release to the Fifth Circuit, which determined that the cases were not ripe under Article III and that the two men had to wait until they were released from prison, began supervised release, and were required to undergo the procedures.  While the Fifth Circuit sided with the Sixth and Seventh Circuits in making this decision, the Ninth Circuit has held that a term of supervised release can be challenged on direct appeal.  Both petitions ask the Court to weigh in on an identical question: “Do 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, or are such appeals ‘unripe’ for  the purposes of Article III?”

Rescheduled cases are the “little sisters” of relists.  Appropriately, two of the recent reschedules are sisters of Little Sisters of the Poor v. Burwell, 15-105, the case challenging the government’s efforts to accommodate religious objections to contraception coverage mandates under the Affordable Care Act.  The two newly rescheduled cases are Roman Catholic Archbishop of Washington v. Burwell, 14-1505, and Priests for Life v. Department of Health and Human Services, 14-1453.  In its brief in Little Sisters, the government identified Roman Catholic Archbishop as the “most suitable” vehicle for deciding this question, so that case especially bears watching.

There are two other rescheduled cases we will be following for you in case they become relists (or more): Bernard v. Minnesota, 14-1470, and DIRECTV, Inc. v. Roberts, 14-1524.  They’re interesting cases, but no need to devote further bandwidth to them quite yet.

And that is it for this episode.  Stick around for an entire term of strained efforts at humor, 90s movie references, and not a single ad for DraftDuel.

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




(relisted after the June 25, June 29, and September 28 Conferences)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)



(relisted after the September 28 Conference)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)


(relisted after the September 28 Conference)

Recommended Citation: John Elwood, Relist Watch – OT2015 Edition, SCOTUSblog (Oct. 9, 2015, 3:15 PM),