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Relist Watch

John Elwood reviews Monday’s relisted cases.

Swamp the Court with cert. petitions,
            Re re re re re re re re list!

‘Tis a holiday tradition,
            Re re re re re re re re list!

Don the jurists’ black apparel,
            Re re re re re re re re list!

While we ruin Christmas carols,
            Re re re re re re re re list!

‘Tis the season for making lists, dear readers! We’ll leave it to you to check them twice, if you stay awake that long.

Let’s begin by breaking with two cherished Relist Watch traditions: starting with successful petitions, and burying the lede. Much of the ink (and electrons) spilled Monday concerned not the five petitions the Court took but the one it didn’t. Friedman v. City of Highland Park, 15-133, which originated from the Second (not Second Amendment) City, brought a constitutional challenge to a city ordinance banning assault weapons and high-capacity magazines. After relisting the case six times, the Court denied cert. over a dissent by Justices Clarence Thomas and Antonin Scalia, who declared that they would “grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.” The denial continues the Court’s general pattern of passing on Second Amendment challenges to gun control laws since the Court decided McDonald v. City of Chicago in 2010 – a trend that some Supreme Court ignorati suspected might doom this case.

For five of last week’s relists though, the joys of the season came early – that is, if your idea of “joy” is to spend major holidays laboring on a Supreme Court merits brief with no prospect of an extension. Starting with the newcomers (breaking traditions left and right here), the following cases were all granted on Friday: Linked cases Puerto Rico v. Franklin California Tax-Free Trust, 15-233, and Acosta-Febo v. Franklin California Tax-Free Trust, 15-255, both one-time relists asking 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”; CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission, 14-1375, another one-timer asking “[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[n] attorney’s fee award to the defendant”; Betterman v. Montana, 14-1457, a once-relisted case asking 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”; and Universal Health Services, Inc. v. United States ex rel. Escobar, 15-7, a thrice-relisted case questioning the viability of the implied false certification theory of liability under the False Claims Act and its application in that case. Escobar’s doppelganger Triple Canopy, Inc. v. United States ex rel. Badr, 14-1440, a three-time relist and one-time reschedule presenting the same basic issues, has been put on hold. [John Elwood, who purportedly contributes to this column in various capacities, filed an amicus brief in Triple Canopy urging the Court to review the issue.]

For another seven of last week’s relists, the yuletide vigil continues. Our reigning relist champions are cross-petitions Wheeler v. White, 14-10376 and White v. Wheeler, 14-1372, which have each received approximately five relists. (More about that here.) 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.

Caetano v. Massachusetts, 14-10078, notched its third relist, which may have something to do with the Court’s request for the record the day after its relisting. The case asks whether the Second Amendment includes stun guns in its definition of “arms.” Taylor v. Yee, 15-169, which poses constitutional challenges to the California Unclaimed Property Law, was relisted a third time too. And Wearry v. Cain, 14-10008, a capital case out of Louisiana, landed its third relist as well. 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 Wearry’s attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington. Because the Court asked for (and received) the record months ago, Wearry is a better candidate than many to be the subject of an opinion soon.

Our final two recurring relists, Murr v. Wisconsin, 15-214, and Sheriff v. Gillie, 15-338, are now both two-timers. Murr implicates the Court’s regulatory takings jurisprudence, and asks whether Penn Central Transportation Co. v. New York City’s “parcel as a whole” concept – the idea that, in deciding whether government action has effected a taking, the Court must focus on the nature and extent of the interference with rights in the “parcel as a whole” – “establish[es] a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes.” And in Sheriff, the cert. petition asks (1) whether special counsel are state “officers” within the meaning of an exception to the Fair Debt Collection Practices Act (FDCPA); and (2) whether it’s “materially misleading under [the FDCPA] for special counsel to use Attorney General letterhead to convey that they are collecting debts owed to the state on behalf of the Attorney General.”

That wasn’t so bad, by Relist Watch standards. As for new relists, that’s a horse of a different color. Sixteen, that’s right, sixteen new cases were added to the Court’s swelling naughty-or-nice list, which left us gobsmacked until we realized that thirteen of them could be knocked out in a pair of ‘graphs. Sometimes it feels like the High Nine are trolling us, tbh.

Let’s start with a case of particular significance to a group that gives us appellate nerds a run for our money; I’m talking about environmental law dweebs here. Kent Recycling Services, LLC v. United States Army Corps of Engineers14-493, and United States Army Corps of Engineers v. Hawkes Co., Inc., 15-290, involve an important question under the Clean Water Act (CWA) – which experienced speed-readers recognize as a cue to skip to the next paragraph. Both cases ask whether a determination by the U.S. Army Corps of Engineers that a parcel of land contains “waters of the United States” that are subject to the agency’s CWA regulatory authority is subject to review under the Administrative Procedure Act (APA), 5 U.S.C. § 704 – which experienced speed-readers recognize as a cue to skip to the next page. The question involves whether the agency’s determination constitutes “final agency action” under Bennett v. Spear – which experienced speed-readers recognize as a cue to skip to the next chapter. A few Terms ago, in Sackett v. EPA, a particularly far-sighted (and well-written!) amicus brief argued such jurisdictional determinations would be immediately reviewable, and in his separate opinion in that case, Justice Samuel Alito suggested that they would be.

Both vehicles are interesting. Of the two, Kent Recycling is our sentimental favorite because it is that rarest of SCOTUS procedural victories – a relisted motion for rehearing of the Court’s decision to deny cert. Shortly after the Court denied cert. on Kent Recycling’s then-splitless claim, the Eighth Circuit held that jurisdictional determinations are reviewable, creating a split. If the Court grants cert. in Kent Recycling, it would mark the first rehearing petition to win plenary review since June 2007’s Boumediene v. Bush. United States Army Corps of Engineers v. Hawkes Co., Inc., 15-290, is Uncle Sam’s petition seeking review of that Eighth Circuit decision, which the government filed nearly a month before the deadline to provide the Court a timely alternative vehicle if the Court is of a mind to take Kent Recycling.   The Hawkes petition does not enthusiastically seek cert.; the government pooh-poohs the split as “shallow” and says only that Hawkes is a better vehicle to resolve the split “if the Court concludes that the question presented here should be resolved now rather than left for further percolation in the courts of appeals” — but the government acknowledges that the split is unlikely to be resolved unless the Court intervenes.

Next, let’s kill thirteen birds with two (three?) stones. Up for consideration last Friday were a coven of cases all presenting the same question: whether, in the absence of a warrant, a state may make it a crime for someone to refuse to take a chemical test to detect the presence of alcohol in his blood. The two lead cases in the group – Bernard v. Minnesota, 14-1470, and Birchfield v. North Dakota, 14-1468 – challenge laws from Minnesota and North Dakota (respectively), which are among the thirteen states that make it a crime to refuse a test for blood-alcohol content. The petitioner in Bernard, who was arrested on suspicion of drunk driving after he got his truck stuck in a river (although the officers likely had probable cause to believe he was intoxicated based solely on the fact that he’d been boating), was later charged with first-degree test refusal which, in Minnesota, carries a mandatory minimum sentence of three years’ imprisonment (!). Bernard argued that imposing criminal penalties for refusing to submit to a warrantless breath test violated the Fourth Amendment, but a divided Minnesota Supreme Court disagreed, reasoning that a warrantless breath test would have been reasonable in Bernard’s case as “a search incident to [his] valid arrest.” Bernard claims (not without force) that this ruling is “shockingly wrong,” and “untethers the search-incident-to-arrest exception . . . from [its] rationale.” The petitioner in Birchfield failed a field sobriety test administered after he drove his car off the road, and similarly refused to submit to a chemical blood-alcohol test. The North Dakota Supreme Court affirmed Birchfield’s conviction on the grounds that first, attaching criminal penalties to test refusal in this context is, as a general matter, reasonable; and second, that the entitlement to drive may be conditioned on the driver’s “deemed agreement to consent to a chemical test.” The Birchfield petition asks the Court to grant review and consolidate it with Bernard. “Alternatively,” the petition continues, “the Court should grant review in Bernard and hold the petition in this case pending disposition of that matter.”

If you had any notion that this issue arises infrequently, there are ten other cases from Minnesota or North Dakota lined up that raise the same issue, which we list here to demonstrate the diversity of surnames in the Upper Midwest: Manska v. Minnesota, 14-9861; Isaacson v. Minnesota, 15-5315; Mawolo v. Minnesota, 15-5307; Washburn v. North Dakota, 14-1469; Baxter v. North Dakota, 15-243; Beylund v. North Dakota, 14-1506; Harns v. North Dakota, 14-1512; Beylund v. Levi, 14-1507; Culver v. Levi, 14-1508; and Wojahn v. Levi, 15-129. From slightly to the south and east comes Gaede v. Illinois, 14-10423, which presents a similar issue. Illinois does not criminalize a person’s refusal to submit to a chemical test, but evidence of refusal is admissible “in any civil or criminal action or proceeding arising out of the acts alleged to have been committed while the person is under the influence.”

While we’re talking about the Fourth Amendment, let’s talk about City of Los Angeles v. Contreras, 15-58. After committing a drive-by shooting “on a busy Los Angeles street” — by municipal ordinance, drive-by shootings are restricted to residential neighborhoods — respondent Contreras engaged two L.A. cops in a car chase that later turned into a pursuit on foot, the only known instance of people travelling by foot in Los Angeles history. As he was running, Contreras kept reaching for “something” in his pants pocket, which the officers thought was either a copy of Epictetus’s The Enchiridion or perhaps a gun. After cornering him at the end of an alley, the officers shot Contreras four times, injuring him badly. After the shooting, the only thing recovered from Contreras was a cell phone. After his conviction for two counts of attempted murder from the drive-by, Contreras filed a Section 1983 suit against the City of Los Angeles and the two officers, alleging that they violated his Fourth Amendment rights by using unreasonable force to apprehend him. A jury ultimately found that both officers had used excessive force and returned a $5.7 million damages award, which the Ninth Circuit affirmed in a four-page unpublished opinion. On cert., the petitioners raise two issues: (1) does Fourth Amendment’s reasonableness standard require that a suspect threaten an officer with a weapon before the officer can use deadly force to apprehend the suspect, or does Tennessee v. Garner allow an officer to use deadly force to prevent the suspect’s escape if the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or others and some warning has been given; and (2) does Tennessee v. Garner “defeat an officer’s entitlement to qualified immunity by providing fair and clear warning that it is unreasonable under the Fourth Amendment for a police officer to use deadly force to apprehend a fleeing suspect where the officer has probable cause to believe the suspect has just committed a crime involving the infliction or threatened infliction of serious physical harm, if after the shooting it is discovered the suspect was unarmed.”

Our last new relist, Ross v. Blake, 15-339, concerns the requirement of the Prison Litigation Reform Act (PLRA) that a prisoner must exhaust all administrative remedies before filing a civil rights suit in federal court. Respondent Blake, an inmate in the Maryland Department of Public Safety and Correctional Services (DPSCS), claimed that he was punched by a correctional officer while he was being escorted out of his cell. The DPSCS opened an investigation into the officer’s conduct to see whether disciplinary action was required. Blake cooperated with this investigation. Believing that he had exhausted his administrative remedies by participating in the investigation, Blake filed a federal suit against the officers, which was later dismissed on the ground that Blake failed to abide by the prison’s internal grievance procedures. But on appeal, and over the dissent of Judge Agee, the Fourth Circuit reversed, and recognized a common-law exception to the PLRA’s exhaustion requirement. Even though Blake technically failed to exhaust his available administrative remedies, the court held that such failure was justified because Blake “reasonably believed that he had sufficiently exhausted his remedies by complying with an internal investigation.” On cert., the petitioner asks whether “there is a common law ‘special circumstances’ exception to the [PLRA] that relieves an inmate of his mandatory obligation to exhaust administrative remedies when the inmate erroneously believes that he satisfied exhaustion by participating in an internal investigation.”

The Court also rescheduled a few cases this week, but in an uncharacteristic act of charity, we’re going to wait to see if any are actually relisted before we waste your time with them.

That’s it for this week. Tune in next week for our last post until 2016. Merry Christmas, ya filthy animals!

Thanks to Bryan Gividen and Conor McEvily for compiling and drafting this update.


[page]14-1372[/page] (relisted after the October 30, November 6, November 13, November 24, and December 4 Conferences)


[page]14-10376[/page] (relisted after the October 30, November 6, November 13, November 24, and December 4 Conferences)


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


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


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


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


[page]15-338[/page] (relisted after the November 24 and December 4 Conferences)


[page]14-1468[/page] (relisted after the December 4 Conference)


[page]14-1470[/page] (relisted after the December 4 Conference)


[page]14-10423[/page] (relisted after the December 4 Conference)


[page]15-58[/page] (relisted after the December 4 Conference)


[page]15-290[/page] (relisted after the December 4 Conference)


[page]15-339[/page] (relisted after the December 4 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Dec. 10, 2015, 1:45 PM),