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Relist Watch

John Elwood reviews Monday’s relisted cases.

If you’re feeling sluggish and uneasy after a day-long sybaritic orgy of indulgence – traditionally observed in America as “Thursday” – we can sympathize, having ingested thousands of words’ worth of Supreme Court miscellany. I wish I could say this week’s a light one, but the Court’s managed to amass fourteen cases on its relist docket, which is about how many gravy-soaked dinner rolls I packed in last Thursday . . . for dessert. Take a deep breath; we’ll get to the bottom of this, eventually.

Let’s start with the closest thing we have to a prize turkey this week. After thrice relisting the case, the Court has finally taken something resembling action in Hernández v. Mesa, 15-118, which asks whether the Fourth Amendment is implicated when a U.S. Border Agent shoots a Mexican national across the border, and whether qualified immunity can shield an officer based on facts unknown to him at the time of the incident. By “take action” we mean “hold off on making any serious decisions until receiving the Solicitor General’s input.” As our just-like-us-except-responsible compadre Lyle Denniston explains, “[t]here is no deadline for the U.S. Solicitor General to file the government’s views with the Court” – which makes sense ‘cause sometimes it takes Uncle Sam a while to figure out what his views are.

Sadly, it wasn’t all gravy for last week’s turkeys; some of them got stuffed. The Court denied cert. in thrice-relisted Rapelje v. Blackston, 15-161, a state-on-top habeas case that asked whether a Michigan court’s denial of a defendant’s request to introduce two witnesses’ written recantations of their testimony was a Confrontation Clause violation. In a dissent from denial of cert. that wound up just one vote short, Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel Alito, urged that “nothing in our precedents clearly establishes the[] admissibility [of such recantations] as a matter of federal constitutional law.” In a sly post-Thanksgiving wisecrack, Scalia wrote that “[t]he Sixth Circuit seems to have acquired a taste for disregarding” the Antiterrorism and Effective Death Penalty Act of 1996. He added, “[w]e should grant certiorari to discourage this appetite—or maybe just serve green beans.” Slip op. 3 (Scalia, J., dissenting) (quotation partly made up).

The Court likewise denied cert. in the repeatedly rescheduled one-time relist Tuomi v. United States, 15-5756, – despite the recommendation of the Solicitor General that the Court grant, vacate, and remand (“GVR”), in what at least feels like a trend. This case presented a vagueness challenge to the residual clause of the Armed Career Criminal Act sentencing guideline, when a similar provision in the act itself had been invalidated in Johnson v. United States.

Like an out-of-town relative overstaying his welcome (rhymes with “Buncle Frank”), the residuum of last week’s relists are hanging around for seconds. Or sixths, if we’re talking about Friedman v. City of Highland Park, 15-133. If granted, this case, which involves a Second Amendment challenge to a city ordinance banning assault weapons and high-capacity magazines, will match Comcast v. Behrend and Meredith v. Jefferson County Board of Education as the most-relisted outright grant that my senescent brain can recall.

Also on ice from last week, cross-petitions Wheeler v. White, 14-10376 and White v. Wheeler, 14-1372 – which are notching either their first or fourth relists, depending on how you’re counting. (Usually we don’t really count relists that are motivated by the need to delay a case until requested records have arrived; but these cases notched two relists before the record requests. The requests themselves, which have both been fulfilled, might indicate that the Court is taking a closer look at the two petitions to see if they’re candidates for summary reversal.) In Wheeler, the prisoner argues that the Sixth Circuit erred regarding certain evidentiary matters; and in White, Kentucky claims that the Sixth Circuit failed to give the state trial court sufficient deference on a juror bias issue – a frequent complaint among the four states composing the Sixth Circuit’s jurisdiction. We’ll have to wait to see whether the three Rapelje dissenters can convince a couple of their colleagues to feed the Sixth Circuit diet pills.

Continuing for a moment our theme of related relists, Triple Canopy, Inc. v. United States ex rel. Badr, 14-1440, (which was also rescheduled once) and Universal Health Services, Inc. v. United States ex rel. Escobar, 15-7, both scored their third relists this week. Both cases involve the theory of implied false certification under the False Claims Act, and Triple Canopy also asks whether Federal Rule of Civil Procedure 9(b)’s requirement of pleading fraud with particularity obliges a plaintiff to plead actual reliance by the government on the alleged false statement. [John Elwood, who purportedly contributes to this column in various capacities, is counsel to amici supporting the petitioner in Triple Canopy.]

Next up, a pair of two-time relists from opposite ends of the country. The petitioner in Caetano v. Massachusetts, 14-10078, who was convicted of possessing an operable stun gun in violation of a Massachusetts law, is asking the Court to address whether the Second Amendment includes stun guns in its definition of “arms.” Meanwhile, from California (who can identify the badly timed visual pun?), Taylor v. Yee, 15-169, presents a Fourteenth Amendment Due Process Clause challenge to the California Unclaimed Property Law and seeks, as an alternative to an outright grant, a GVR in light of Horne v. Department of Agriculture.

Combined, the names of the respondent in the foregoing case and the petitioner in the forthcoming one would be a succinct (if archaic) way of describing how you’re feeling right now. Wearry v. Cain, 14-10008, a capital case out of Louisiana, has been rescheduled, had its record requested, and has now been relisted – twice. 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.

That’s it for old relists. As for new relists, we’ve got a half dozen.

Let’s start off with a twofer. The respondents-plaintiffs in the linked cases Puerto Rico v. Franklin California Tax-Free Trust, 15-233, and Acosta-Febo v. Franklin California Tax-Free Trust, 15-255, are creditors of bonds issued by a Puerto Rican public utility. “Puerto Rico,” as it turns out, is something of a misnomer, since the commonwealth’s three major public utilities have a combined debt of some $20 billion – part of a heavy debt load that spurred the territory’s legislative assembly to declare a state of “fiscal emergency” last year. Because Puerto Rico’s public utilities are categorically excluded from restructuring debt under Chapter 9 of the federal Bankruptcy Code (although the fifty states’ public utilities are not), the Commonwealth enacted the Recovery Act, which, among other things, “creates a mechanism for Puerto Rico’s public corporations to restructure their debt so that they can continue to provide essential public services … while at the same time protecting their creditors.” The First Circuit said (and I’m paraphrasing here), great idea, but it’s unlawful. In an opinion authored by Judge Sandra Lynch, the First Circuit agreed with the district court below that Section 903(1) of the federal Bankruptcy Code expressly preempts Puerto Rico’s Recovery Act, and held, in addition, that the act would frustrate the purpose of that federal provision. On cert., petitioners in both cases ask whether Chapter 9 of the Bankruptcy Code “preempts a Puerto Rico statute creating a mechanism for the Commonwealth’s public utilities to restructure their debts.”

Next up is CRST Van Expedited, Inc. v. EEOC, 14-1375. In 2007, the Equal Employment Opportunity Commission filed a complaint against CRST on behalf of a class of the company’s female workers who claimed they’d been sexually harassed while employed as long-distance truck drivers. After the trial court dismissed a slew of the EEOC’s claims for a discovery violation, the trial court dismissed the rest on the ground that the commission had failed to fulfill its pre-suit obligations under Title VII of the Civil Rights Act (i.e., investigating the individual claims, finding reasonable cause for them, and attempting to conciliate them before bringing suit). The district court later awarded CRST over $4 million in costs and attorney’s fees – an award the Eighth Circuit reversed after applying a rule limiting civil rights fee awards to cases involving rulings “on the merits.” On cert., CRST asks “[w]hether a dismissal of a Title VII case, based on the [EEOC’s] total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of a [sic] attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k).” Great issue, brah; but dat typo tho :/

Next, a case implicating the Court’s regulatory taking jurisprudence. The petitioners in Murr v. Wisconsin, 15-214, four siblings, were given two contiguous plots of land on the shores of Lake St. Croix (the one in Wisconsin, not France). While a three-bedroom cabin had been built on one of the lots, the other, originally acquired as an investment vehicle, remained vacant. When the Murr siblings finally decided to sell the empty lot, they were chagrined to learn that its development was precluded by a set of regulations enacted thirty years prior. (Take note budding real estate moguls: gather yee rosebuds.) After exhausting their administrative remedies, the siblings filed a complaint alleging an uncompensated taking: “without the ability to sell or develop the [vacant] lot,” petitioners urged, “it is rendered economically useless.” But on appeal, a Wisconsin court ruled that because the vacant and developed lots are contiguous, and happen to be owned by the same people, the “parcel as a whole” rule articulated by the Supreme Court in Penn Central Transp. Co. v. New York City required the two parcels to be combined for a takings analysis. Based on this rationale, the Wisconsin court concluded that the property, viewed as a whole, retained its beneficial and practical use as a residential lot. On cert. the Question Presented asks whether Penn Central’s “parcel as a whole” concept “establish[es] a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes.”

Betterman v. Montana, 14-1457, which implicates the Sixth Amendment’s Speedy Trial Clause, is a reminder that the (wagon) wheels of justice roll slowly in Big Sky Country. After petitioner Brandon Betterman failed to appear at a 2011 court appearance for domestic assault charges (“he lacked the money or transportation to travel more than two hundred miles to attend court”), he pleaded guilty to bail jumping. But after being sentenced for his domestic assault charge, Betterman waited more than fourteen months to be sentenced on the bail jumping count, spending all of that time in county jail ,where (among other things) he was ineligible for conditional release and could not complete a chemical dependency evaluation. Nearly a year into his time at county jail, Betterman filed a motion to dismiss on speedy trial grounds, which the trial court denied. On appeal, the Montana Supreme Court affirmed, overturning prior precedent to hold that the Sixth Amendment’s speedy trial right ceases to apply “when conviction becomes definitive.” On cert., Betterman asks whether the Speedy Trial Clause “applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case.”

This week’s last new relist, Sheriff v. Gillie, 15-338, is a dispute about stationery. Really. Under Ohio law, the state attorney general is tasked with collecting debts owed to the state — a task that the AG generally farms out to an appointed “special counsel” authorized to “represent the state in connection with” debt collection. Plaintiffs-respondents brought a putative class action under the federal Fair Debt Collection Practices Act (FDCPA), alleging that the special counsel’s use of state letterhead in collecting their debts amounted to a “false, deceptive, or misleading representation or means” of debt collection under 15 U.S.C. § 1692e. But the district court granted summary judgment against them, holding first, that the special counsel fell under an FDCPA exception for government “officers or employees,” and second, that there was nothing misleading about special counsel’s use of state letterhead. On appeal, over a dissent from Judge Jeffrey Sutton, the Sixth Circuit reversed, holding that special counsel did not meet the FDCPA’s government-officer exception, and that a jury could indeed conclude that special counsel’s use of state letterhead was misleading. The Sheriff’s (and that’s petitioner’s surname, not a job title) cert. petition asks (1) “[a]re special counsel … state ‘officers’ within the meaning of [the FDCPA exception]”; and (2) is it “materially misleading under [the FDCPA] for special counsel to use Attorney General letterhead to convey that they are collecting debts owed to the [S]tate on behalf of the Attorney General.”

The Court rescheduled a few cases this week, but as usual, we’ll wait to see if any are actually relisted before we waste your time with them.

And with that, we’re done! Only two more Relist Watches ‘till the Court recesses for the holiday season – assuming Starbucks hasn’t cancelled it by then.

Thanks to Ralph Mayrell and Conor McEvily for compiling and drafting this update.


[page]15-133[/page] (relisted after the October 9, October 16, October 30, November 6, November 13, and November 24 Conferences)


[page]14-1372[/page] (relisted after the October 30, November 6, November 13, and November 24 Conferences)


[page]14-10376[/page] (relisted after the October 30, November 6, November 13, and November 24 Conferences)


[page]14-1440[/page] (relisted after the November 6, November 13, and November 24 Conferences)


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


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


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


[page]14-1375[/page] (relisted after the November 24 Conference)


[page]14-1457[/page] (relisted after the November 24 Conference)


[page]15-214[/page] (relisted after the November 24 Conference)


[page]15-233[/page] (relisted after the November 24 Conference)


[page]15-255[/page] (relisted after the November 24 Conference)


[page]15-338[/page] (relisted after the November 24 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Dec. 3, 2015, 3:25 PM),