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Relist Watch to Major Tom

John Elwood commences countdown of Monday’s relisted cases.

Welcome Young Americans to another installment of the country’s most Prestige-ous semi-humorous and largely factual Supreme-Court-docket-tea-leaf-reading feature, Relist Watch. Also, the only one. Our time together is Under Pressure: we have 17 unrelated relists (!!!) in today’s post. So Let’s Dance.

Normally we start with relists that Win a cert. grant. But this week everything was all Ashes to Ashes as the Court did not grant any relists. True, one un-relisted Absolute Beginner, Welch v. United States, 15-6418, immediately found itself Dancing with the Big Boys on the Court’s merits docket. But there was only room for one grant this week; a case that had played for time by notching a single relist was denied. It was wham, bam, thank you Supreme Court of the United States for American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority, 15-141, which might have shed light on the Boston transit system’s ability to bar pro-Israel ads although it had previously run allegedly pro-Palestinian ads. (So much strife over A Small Plot of Land!)

One mea culpa for our last installment: Turns out we were Telling Lies when we said that False Claims Act (FCA) case AT&T, Inc. v. United States ex rel. Heath, 15-363, had been relisted – apparently, it is just being held for Universal Health Services v. United States ex rel. Escobar, 15-7. But before you think I’m Deranged, God Only Knows why the Court is holding Heath (which involves FCA pleading standards under Federal Rule of Civil Procedure 9(b)) for Universal Health (which involves the implied false certification doctrine under the FCA). Heath demonstrates how broadly the Court applies its policy of holding petitions that may be affected by pending cases. Don’t Scream Like A Baby – recall that the Court had not yet updated its docket when we did our last installment, so we had just the beer light to guide us in discerning holds from relists.

The rest of last installment’s relists were able to navigate the Labyrinth of the Court’s docket. Caetano v. Massachusetts, 14-10078, notched its fifth relist; the case asks whether the Second Amendment protects an individual’s right to bear a ray gun in self-defense. (OK, that description stretches the facts a tad, but at least we didn’t try to work in “pink monkey bird.”) Time does not favor petitioner Jaime Caetano; the statistics suggest a dissent from denial of cert. may be coming. Wearry v. Cain, 14-10008, another fifth-time relist, asks a pair of questions about Brady and ineffective assistance of counsel. Yet another five-timer, Taylor v. Yee, 15-169, addresses whether California laws regarding unclaimed property are a “taking” for Takings Clause purposes. Four-time relist Murr v. Wisconsin, 15-214, questions whether combining two legally distinct but contiguous parcels together in determining whether the owner has been deprived of use of the land is taking it all the right way under Takings Clause jurisprudence. Israel Ben-Levi, the petitioner in two-time relist Ben-Levi v. Brown, 14-10186, claims that prison officials were religiously unkind to him in an unlawful manner, denying him the ability to meet and worship with other inmates because he could not muster a minyan of ten men prison officials claim is required for group worship.

Let’s ch- ch- ch- change what we’re going through and talk about the twelve new relists. Our first petition seeking Fame is Manuel v. City of Joliet, 14-9496. The petition asks the Court to resolve a circuit split over whether a cause of action for malicious prosecution is cognizable under the Fourth Amendment – an issue left open by Albright v. Oliver. The plaintiff, Elijah Manuel, alleges that six police fabricated evidence to support a criminal prosecution against him. He argued that the prosecution was itself a form of detention under the Fourth Amendment that he could Sue under Section 1983 for damages. The Seventh Circuit ruled that no such claim existed, in apparent disagreement with a number of other circuits.

The next petition pulled a Relist Lazarus. Two Terms ago, the Court relisted Amgen Inc. v. Harris, a case regarding whether the “fraud on the market” theory from securities class actions applied in the context of Employee Retirement Income Security Act of 1974 (ERISA) claims. After being relisted once, the case was held for Fifth Third Bancorp v. Dudenhoeffer and eventually the Court granted, vacated, and remanded for further consideration in light of that decision. Well, Amgen Inc. v. Harris, 15-278, is back. This time petitioner Amgen Inc. argues that the Ninth Circuit didn’t take Fifth Third Bancorp seriously and just “re-issued its [previous] opinion with only minor changes.” The question remains the same: does the “fraud on the market” theory apply in the ERISA context?

Ortiz-Franco v. Lynch, 15-362, is for all you CAT People out there. Petitioner Elenilson Ortiz-Franco invoked the Convention Against Torture to request a deferral of removal. CAT is one of the only bases for an ille… undoc… uh… an alien who isn’t supposed to be here with a felony record to obtain deferral. The immigration judge (IJ) rejected Ortiz-Franco’s claim on a factual basis – the would-be torturers were unlikely to learn the facts that would cause them to torture him. On appeal, the Second Circuit concluded it lacked authority to hear his case because it challenged the IJ’s factual conclusions. The question presented is whether appellate courts are divested of jurisdiction to review factual findings underlying denial of deferral of removal.

Kansas v. Aguirre, 15-374, involves a criminal defendant who, partway through an interview with police decided, “I can’t give everything away,” and asked to stop the questioning so he could take his current girlfriend’s child to the child’s grandparents (and, he said, later return to resume the interview). Police continued to interview Luis Aguirre, who then confessed to killing his former girlfriend and their child. After being convicted of capital murder, Aguirre challenged the use of his confession, and the Kansas Supreme Court held that police violated the Fifth Amendment by continuing to question Aguirre after he said “This is—I guess where I, I’m going to take my rights.” The state’s petition seeks review of whether an individual’s desire for a temporary cessation of questioning is an unequivocal invocation of the right to remain silent sufficient to require police to stop questioning. The fact that Kansas is once again petitioning in yet another grisly murder case is a reminder that the state is the Criminal World that gave us In Cold Blood.

Though some prophets foretold the death of copyright by 2012, the Copyright Act continues to Survive. The petitioner, Supap Kirtsaeng, in Kirtsaeng v. John Wiley & Sons, Inc., 15-375, sequel to the successful case of that name from October Term 2012, wants to establish what the Copyright Act standard is for prevailing parties to obtain attorney’s fees. You might think that our next intellectual property (IP) case, Cuozzo Speed Technologies, LLC v. Lee, 15-446, would interest only Kooks: The case presents two specialized questions involving the standards applied by the Patent and Trial Appeal Board (PTAB) in inter partes review (IPR) proceedings and whether a court of appeals can review the PTAB’s decision to institute an IPR proceeding. But you would be wrong: Nine amicus briefs Join the Gang in this case, which demonstrates importance through the sheer tonnage of the pleadings.

Fair Labor Standards Act (FLSA) statutory interpretation cases have been in Fashion in recent Terms, and Encino Motorcars, LLC v. Navarro, 15-415, is trying to capitalize on that trend. The petition asks whether “service advisors” at a car dealership are “salesmen” who qualify for an exemption from a maximum-hours requirement. Because recent FLSA cases have been decided unanimously, there was no issue whether the Court’s remaining swing Justice would turn to the left or turn to the right. Another popular activity with the Nine has been trying to figure out what the Hobbs Act can prohibit. McDonnell v. United States, 15-474, involving former Virginia governor Bob McDonnell’s appeal of his criminal conviction, asks whether “official action” under the federal fraud statutes is limited to exercising actual governmental power, and if not, whether the Hobbs Act and honest-services fraud are unconstitutional; the case also presents a question about what steps a court must take to ensure potential jurors are not affected by pretrial publicity. In August, the Court granted a stay of the mandate, setting the former governor on a Fantastic Voyage that may end with a cert. grant.

A church, the petitioner in Trinity Lutheran Church of Columbia, Inc. v. Pauley, 15-577, wanted to resurface its pre-school’s playground with Rubber provided by the Missouri Scrap Tire Grant Program. But the state denied its application because the Missouri constitution provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” The church argues that even though it may worship on Sunday, “[s]eeking to protect children from harm while they play tag and go down the slide is about as far from an ‘essentially religious endeavor’ as one can get.” And, if there are no Establishment Clause problems, the church argues, the state cannot withhold the rubber without violating the Free Exercise and Equal Protection Clauses.

I’d Rather Be [the] High Court than the Idaho Supreme Court in James v. City of Boise, 15-493. The Supreme Court has held that certain civil rights statutes authorizing a court “in its discretion” to award attorney’s fees allow courts to award fees against a plaintiff only if the lawsuit is “frivolous, unreasonable, or without foundation.” Because the relevant statutes explicitly referenced a court’s discretion, the Idaho Supreme Court concluded that the Supreme Court “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.” Accordingly, it imposed attorney’s fees on an unsuccessful plaintiff although her suit was not frivolous. Idaho Supreme Court, you Rebel, Rebel. Petitioner Melene James seeks to establish that the Idaho courts are every bit as bound by those decisions as federal district courts are.

Little Wonder that the Court is taking a close look at Microsoft Corp. v. Baker, 15-457, a class action case out of the Ninth Circuit. According to the petition, the federal courts of appeals are split over whether class action plaintiffs who are denied class certification may voluntarily dismiss their claims with prejudice in order to immediately appeal the certification ruling. Petitioner Microsoft argues that Coopers & Lybrand v. Livesay forecloses plaintiffs from forcing an appellate court to hear an interlocutory appeal from an order denying class certification. The case involves allegations that Microsoft’s Xbox 360 is unduly prone to scratching game discs.

And that is it for this week’s edition of Re…. Wait. No. Come back. There’s another relist we need to go over with you.

The case is Dietz v. Bouldin, 15-458. A jury considering injuries petitioner Rocky Dietz sustained in a car accident ruled in his favor but awarded $0 in damages. The judge discharged the jury, but after some of the jurors began to Slip Away, realized that the verdict didn’t square with the parties’ stipulation regarding the damage amount. The judge recalled the jurors, set aside their verdict, and instructed them to begin their deliberations anew. Eventually they awarded Dietz damages. Apparently this kind of thing happens often enough that a circuit split has developed over whether judges can recall juries after they’ve been discharged. The petition asks the Court to resolve the split.

This time you really are free to go, just like that bluebird and one of the great artists of our time. Today’s farewell salute appears to have gone better than the one we did for GWAR’s Oderus Urungus, but then again, we had more material. We’ll be back next week with another edition of Relist Watch, hopefully without saying goodbye to yet another rocker.

Thanks to Stephen “Disco King” Gilstrap for compiling this list and Bryan “Space Oddity” Gividen for bogging down the entire office’s Internet by watching YouTube while drafting this update.


[page]14-10008[/page] (relisted after the November 13, November 24, December 4, December 11, and January 8 Conferences)


[page]14-10078[/page] (relisted after the November 13, November 24, December 4, December 11, and January 8 Conferences)


[page]15-169[/page] (relisted after the November 13, November 24, December 4, December 11, and January 8 Conferences)


[page]15-214[/page] (relisted after the November 24, December 4, December 11, and January 8 Conferences)


[page]14-10186[/page] (relisted after the December 11 and January 8 Conferences)


[page]14-9496[/page] (relisted after the January 8 Conference)


[page]15-278[/page] (relisted after the January 8 Conference)


[page]15-362[/page] (relisted after the January 8 Conference)


[page]15-374[/page] (relisted after the January 8 Conference)


[page]15-375[/page] (relisted after the January 8 Conference)


[page]15-415[/page] (relisted after the January 8 Conference)


[page]15-446[/page] (relisted after the January 8 Conference)


[page]15-457[/page] (relisted after the January 8 Conference)


[page]15-458[/page] (relisted after the January 8 Conference)


[page]15-474[/page] (relisted after the January 8 Conference)


[page]15-493[/page] (relisted after the January 8 Conference)


[page]15-577[/page] (relisted after the January 8 Conference)


Recommended Citation: John Elwood, Relist Watch to Major Tom, SCOTUSblog (Jan. 14, 2016, 2:43 PM),