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Relist Carols

John Elwood reviews Monday’s relisted cases, with profuse apologies to Louis Armstrong and all readers with even a modicum of taste. Cue music.

I see grants, denials
and relists too.
They’re on the docket
for me and you.
And I think to myself,
what a wonderful Court.

I see a grant for Bryant,
with no relist.
That’s about as rare
as a Steph Curry miss.
And I think to myself
what a wonderful Court.

The joy of the lawyers,
for Birchfield and Bernard.
Is also on the faces
of petitioner in Beylund.
I see Sherriff’s and Gillie’s counsel
saying “how do you do.”
They’re really saying “I’ll beat you.”

I hear Caetano (and Yee) crying,
“will I ever grow?”
Will there be grants for Wearry (and Murr)?
I do not know.
And I think to myself
what a wonderful Court.
Yes I think to myself
what a wonderful Court.

I guess I never realized how short that song was. We still have a lot to cover. Bing, will you tell us about the new relists this week?

I’m dreaming of the new relists,
just like the ones that used to reign.
With False Claims Act bliss
and lawyers wish
to post pro-Israel ads on some train.

I’m dreaming of AT&T v. Heath
with every federal form I write.
If the phone company wins this fight
you’ll have to plead a (specific) false claim to be right.

I’m dreaming of AFDI against the T
That awkward caption kills my mood.
Meanwhile in prison
Ms. Brown won’t listen
to Ben-Levi studying the Talmud.

I’m dreaming of the new relists
With every Relist Watch I write.
May you have paying clients on your hands
and may all your relists become grants.


Okay, I’m told we can’t get away with just singing to you and have to actually discuss this week’s relists. We’ll be brief and let you get back to plotting your white elephant gift strategy.

The Justices must be aglow with the non-sectarian spirit of the season, because they’ve been handing out gifts left and right. Birchfield v. North Dakota, 14-1468, and its alliterative pals, Bernard v. Minnesota, 14-1470, and Beylund v. Levi, 14-1507, were all granted after one relist and consolidated for argument. This trio with brio will resolve whether states may make it a crime to refuse a warrantless breathalyzer test. U.S. Army Corps of Engineers v. Hawkes Co., 15-290, also was granted following a single relist. That case involves the reviewability of the decision of the U.S. Army Corps of Engineers that a parcel of land contains “waters of the United States,” making it subject to the Clean Water Act. Unfortunately, the grant in this case means that nerd-heartthrob Kent Recycling Services, LLC v. United States Army Corps of Engineers, 14-493, the rare relisted motion for rehearing, now takes a place at the kids’ (aka holds) table.

The last one-time relist to get a grant was Ross v. Blake, 15-339, which asks whether a prisoner who thought he exhausted his administrative remedies under the Prison Litigation Reform Act can be excused from his obligation to actually do so. Sounds like respondents’ counsel have their work cut out for them. Meanwhile, Sheriff v. Gillie, 15-338, was granted after a whopping two relists. It asks whether outside “special counsel” hired by the state to collect debts are state officers under the Fair Debt Collection Practices Act and whether it is misleading for them to use attorney general letterhead to convey that they are collecting debts owed to the state on behalf of the state’s AG.

If you needed any further proof that the Justices are just trolling us, you need look no further than United States v. Bryant, 15-420. In a world of Friday grants in relisted cases, this case was the rare Monday grant without a relist, just to screw with all the people who began the week saying (reasonably enough), “no additional grants are expected.” The case asks whether the use of uncounseled misdemeanor convictions in tribal courts count towards a federal crime with a predicate-offense element. This is the second consecutive year that the Court granted a single virgin case during the last conference in December. In this instance, the Solicitor General’s involvement may have reassured the Court that no vehicle issues would pop up, making the quality-check relist unnecessary; last year, the case was just incredibly straightforward.

Our relist champions will be leaving us. White v. Wheeler, 14-1372, won a summary reversal, with the Court giving the Sixth Circuit yet another (unwanted) notch in its belt by holding that a federal court must be deferential and avoid second-guessing a state court regarding the removal of a juror in a capital murder trial. No such luck for petitioner in its companion case, Wheeler v. White, 14-10376, in which a prisoner argued that the Sixth Circuit erred regarding certain evidentiary matters; cert. was denied in that case without comment.

The only other denied relist was the once-relisted City of Los Angeles v. Contreras, 15-58, which asked whether a police officer who used deadly force to prevent a suspect’s escape was entitled to qualified immunity.

Our remaining returning relists will be sticking around for the holidays. Or at least it appears they will: As this is being posted, the Court has not yet updated its online docket, so we are inferring a relist from the absence of further action. Caetano v. Massachusetts, 14-10078, earned its fourth relist. However, the record only arrived on Monday, so does that (presumed) relist even count? The case asks whether the Second Amendment includes stun guns in its definition of “arms.” Taylor v. Yee, 15-169, which aims to get you all your stuff back by challenging the constitutionality of the California Unclaimed Property Law, was also relisted for a fourth time. Wearry v. Cain, 14-10008, a capital case out of Louisiana, is our third fourth relist. It asks (1) whether the Louisiana courts erred in failing to find that the state’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that Michael Wearry’s attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington. Trailing just behind these new leaders is Murr v. Wisconsin, 15-214, which picked up its third relist. This case asks whether two legally distinct but commonly owned contiguous parcels can be combined for regulatory takings analysis under Penn Central Transportation Co. v. New York City’s “parcel as a whole” concept.

Now let’s move on to our newcomers. If you paid close attention to our special guest Bing, you already know the three cases, although we caution that it’s even harder to discern the status of newcomers from an unchanged docket than it is with cases that have been relisted before. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, 15-141, wins the award for longest caption. It involves an attempt by AFDI to post ads on the advertising space of the Boston area’s transit system. The ads consist of such warm holiday greetings as, “[i]n any war between the civilized man and the savage, support the civilized man. Defeat violent jihad. Support Israel.” (Actually a modification of an Ayn Rand quote.) The MBTA (which is way less pronounceable than AFDI) rejected the ads even though it had previously run pro-Palestinian ads. A district court denied AFDI’s petition for a preliminary injunction, and a divided First Circuit affirmed. The AFDI’s petition asks (1) whether the MBTA created a public forum by accepting ads and thus violated the First Amendment by rejecting AFDI’s ad based on content and (2) whether the MBTA’s rejection was an unconstitutional viewpoint-based restriction of speech.

AT&T, Inc. v. United States ex rel. Heath, 15-363, seeks to be the second False Claims Act case granted this Term. The relator in this case alleged that AT&T failed to offer schools and libraries participating in the federally established E-Rate Program the “lowest corresponding price” for services as required by federal regulations. The complaint claimed that for over a decade, every one of the government forms AT&T and its subsidiaries submitted annually certifying compliance (and every corresponding form recipients of AT&T’s services submitted) was false. AT&T moved to dismiss, arguing that the relator failed to comply with Rule 9(b) of the Federal Rules of Civil Procedure by not stating specific facts regarding at least one allegedly false or fraudulent claim submitted to the government. The D.C. Circuit rejected that argument, joining (by petitioner’s count) six other circuits in holding that a complaint that describes a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted satisfies Rule 9(b). AT&T argues that four other circuits have required pleading details of at least one claim alleged to be false or fraudulent.

The final gift under the relist tree is a handwritten pro se petition, Ben-Levi v. Brown, 14-10186. Israel Ben-Levi (also known to as Danny L. Loren) is incarcerated in the North Carolina prison system – if his petition is any indication, for an aggravated felony involving horrible penmanship. He asked to use a quiet room in which to conduct a “Jewish bible study” with two other inmates. Prison chaplain Betty Brown researched the practices of the Jewish faith and consulted with a rabbi, then denied Ben-Levi’s request on the grounds that, according to the practices of the Jewish faith, study of the Talmud requires a quorum of ten adult Jewish males (a minyan) or a qualified teacher (a rabbi). Ben-Levi sued under Section 1983 and the Religious Land Use and Institutionalized Persons Act, alleging a violation of his free-exercise rights under the First and Fourteenth Amendments. The district court denied his claims and the Fourth Circuit affirmed without even asking North Carolina to file a reply. Over the summer, the Justices reviewed Ben-Levi’s petition and, after weeping softly about the calligraphic atrocity it represented, ordered North Carolina to respond. It’s a shame Chaplain Akbar was dismissed from this case early on: He surely would have warned Ms. Brown that the Court would want a second look. (Did you really think we could pass up a Star Wars reference this week?)

That’s all we got. Enjoy your holiday traditions and some well-deserved time off. We will see you in 2016.

Thanks to Stephen Gilstrap for compiling the list and Dmitry Slavin for annoying his neighbors by singing out loud in his office while drafting this update.


[page]14-10008[/page] (relisted after the November 13, November 24, December 4, and December 11 Conferences)


[page]14-10078[/page] (relisted after the November 13, November 24, December 4, and December 11 Conferences)


[page]15-169[/page] (relisted after the November 13, November 24, December 4, and December 11 Conferences)


[page]15-214[/page] (relisted after the November 24, December 4, and December 11 Conferences)


[page]15-141[/page] (relisted after the December 11 Conference)


[page]15-363[/page] (relisted after the December 11 Conference)


[page]14-10186[/page] (relisted after the December 11 Conference)

Recommended Citation: John Elwood, Relist Carols, SCOTUSblog (Dec. 17, 2015, 1:33 PM),