John Elwood (barely) reviews Monday’s relisted cases.

Today’s post answers the question of what Relist Watch would look like if you were able to remove the strained attempts at humor (as some readers have requested — kick629, this one’s for you). I’m tied up preparing for a court of appeals argument, and so find myself sadly lacking time to scour the interwebs for the week’s most compelling images of human endeavor to bring to a readership that thirsts for knowledge. In any event, today’s post confirms what regular readers have long suspected: Relist Watch is not funny anymore.

Was relisted; cert. denied


Issue(s): (1) Whether, in order to be “transformative” under the fair-use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell v. Acuff-Rose Music, Inc. and as the Third, Sixth, and Eleventh Circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth Circuits have held; (2) whether the Second Circuit’s approach to fair use improperly makes “transformative purpose” the decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged; (3) whether the Second Circuit erred in concluding that a commercial business may evade liability for verbatim copying by arguing that the recipients of those copies will use them for lawful and beneficial purposes, a rationale that has been flatly rejected by the Sixth Circuit; and (4) whether a membership association of authors may assert copyright infringement claims on behalf of its members.

(cert. denied being relisted after the Apr. 1 Conference)



Issue(s): Whether defense counsel may be presumed to have knowledge of exculpatory statements withheld by the prosecution, absent an initial showing otherwise.

(cert. denied being relisted after the Mar. 18 Conference and rescheduled after the Apr. 1 Conference)


Was relisted; relisted again


Issue(s): (1) Whether the Court should reconsider, and then overrule or modify, the portion of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City barring property owners from filing a federal takings claim in federal court until they exhaust state court remedies, when this rule results in numerous jurisdictional “anomalies” and has a “dramatic” negative impact on takings law under San Remo Hotel, L.P. v. City and County of San Francisco; and (2) whether, alternatively, federal courts can and should waive Williamson County’s state litigation requirement for prudential reasons when a federal takings claim is factually concrete without state procedures, as some circuit courts hold, or apply the requirement as a rigid jurisdictional barrier, as other circuits hold.

(relisted after the Apr. 1 and Apr. 15 Conferences)



Issue(s): (1) Whether the Antiterrorism and Effective Death Penalty Act’s presumption that a state decision rejecting a claim is a ruling on the merits can be rebutted by looking through to an earlier state ruling which applied a procedural bar that, under state law, could not be the basis for the later decision; and (2) whether, if so, a change in state law reducing a prisoner’s ability to earn future good-time credits based on new or continuing prison misconduct violates the Ex Post Facto Clause as applied to a prisoner who committed his underlying crime before the change in law.

(relisted after the Apr. 1 and Apr. 15 Conferences)


We thought it was a relist because the dockets hadn’t been updated; it’s actually something else


Issue(s): (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. CVSG: 03/01/2016.

(held, not relisted after the Apr. 1 Conference)



Issue(s): (1) Whether this Court intended in Long Island Care at Home, Ltd. v. Coke to allow the Department to deprive all third-party home care employers (who employ more than 90% of all home care employees) of their statutory right to avail themselves of exemptions to overtime under the Fair Labor Standards Act; (2) whether the D.C. Circuit erred in finding that Congress intended to exclude employees of third party employers from the home care exemptions, thereby conflicting with Coke’s contrary reading of Congressional intent and creating a conflict in the circuits; and (3) whether the Department’s new rule should be found to be unreasonable due to the agency’s failure to meaningfully address the relevant factors of unaffordability and lack of adequate state funding of the increased costs of home health care under the new rule.

(held, not relisted after the Apr. 1 Conference)


New relists


Issue(s): What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act.

(relisted after the Apr. 15 Conference)



Issue(s): Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.

(relisted after the Apr. 15 Conference)



Issue(s): Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.

(relisted after the Apr. 15 Conference)


Serial relists raising Montgomery v. Louisiana issues that notched yet another relist

Johnson v. Manis, 15-1

Knotts v. Alabama, 15-6284

Adams v. Alabama, 15-6289

Flowers v. Alabama, 15-6306

Slaton v. Alabama, 15-6300

Barnes v. Alabama, 15-6904, 15-6905

Bonds v. Alabama, 15-6290

Thanks to Bryan U. Gividen for compiling the cases, and in the process, largely drafting this post.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 20, 2016, 1:35 PM),