John Elwood soliloquies about Monday’s relisted cases.

We here at Relist Watch strive always to be topical.  So this week, we thought we’d use an organizing theme that – aside from providing the basis for obscure pilots on a little-used medium called “broadcast TV” — hasn’t really been topical in about four hundred years, or at the most recent, since high-school English.  Decide for yourselves which is more irritating: our literary pretensions, or the fact that the Court’s dockets haven’t been updated, leaving us all to speculate about what is a relist, and what a mere hold?

O GMU Law, GMU Law!  Wherefore art thou GMU Law?  Deny thy eponym and refuse thy acronym! (The hate mail is already arriving saying that any idiot would know the proper term is “abbreviation.”)  Or, if thou wilt not, be but the recipient of a donation, or thou will be the butt of many jokes.  What do you say we put an end this introduction before we get to the part about smelling sweet?  There are limits even to our juvenility.

Old Business:  Call the defendant in Monday’s only granted relist but love, dear juror, or perchance, a “Mexican m[a]n [who] take[s] whatever [he] want[s],” and that first-time relist will be new baptized as a granted case.  Henceforth, Pena-Rodriguez v. Colorado, 15-606, will be on the Court’s rolls, to answer for all of us the question whether the general rule holding inadmissible juror testimony about deliberations may constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

How petitionest for habeas, respondent, tell me, and wherefore?  The walls of deference are high and hard to climb, and the place death, considering who thou art, respondent.  And so it was that, as foretold, respondent in four-time relist Woods v. Etherton, 15-723, fell at those walls – twice heightened by deference both to the state habeas court and to counsel’s presumptively reasonable choices.  The Court thus summarily reversed the Sixth Circuit’s grant of habeas relief in a per curiam opinion, holding that the court had once again failed to show sufficient deference – this time, regarding trial counsel’s decision not to raise a Confrontation Clause argument against the prosecution’s use of an anonymous tip.

Look thou but sweet, and the petitioner in Kakarala v. Wells Fargo Bank N.A., 15-712, might be proof against the subtleties of remand from removal.  But the petition were better ended by its denial than relists prorogued, wanting of its grant.  And so the show closed for this one-time relist.  But Justice Thomas dost love the issue, even if the Court hates the vehicle, and pronounced it faithfully, issuing a dissent from denial of cert. arguing the petition should have been granted to reconsider the holding in Thermtron Products, Inc. v. Hermansdorfer that appellate courts can review remand orders under circumstances too difficult to describe in an approximation of iambic pentameter.

O, swear not plaintiffs by the confidence interval and the sample, th’ inconstant distributions and the regressions, lest thy action face individual defenses that prove likewise variable.  The Court did not swear at all by Wal-Mart Stores, Inc. v. Braun, 14-1123 & 14-1124, which, after one big relist in May 2015, a long, cold hold for Tyson Foods, Inc. v. Bouaphakeo, and another relist last week, the Court denied with a masterful head fake, putting off to another day the question whether the Due Process Clause prohibits a state court from certifying a class action (and entering judgment in favor of the class) when the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses defendants from presenting individualized defenses to class members’ claims.  (Or at least that’s how Wal-Mart put the question.)  Wells Fargo Bank v. Gutierrez, 14-1230, was likewise denied, after a similarly long hold for Tyson Foods and a similarly excellent head fake.  Thus, no answer yet to a question that Tyson Foods itself called one “of great importance,” namely whether “whether uninjured class members may recover” in class actions.  For people on both sides of the class action bar, denial in these two cases represents a big missed opportunity to provide additional clarity on recurring issues.  Perhaps the Court wanted to wait until it was back at full strength to answer them, or perhaps the Justices simply wanted to give the lower courts more time to chew on Tyson Foods.

Yet the Court should deny (or grant, vacate, and remand?) thee with much cherishing, thou eight relisted Miller retroactivity cases, with records received, waiting to learn whether, after between five and six relists each, and many brethren remanded, their outcomes will be changed soon by Montgomery v. Louisiana or left to sit longer to ponder the fate of juveniles sentenced to mandatory life imprisonment.

New Business: Gallop apace, you fiery-footed new relists with your laggard docket updates, toward the clerk’s lodging to beg for confirmation.

Many authors have no joy in Google’s scanning of their books.  It is too rash, too unadvised, too sudden, too like the lightning, this modern electronic media, which doth cease to be ere one can say, “Just [redacted] Google It,” or so petitioners argue in Authors Guild v. Google, Inc., 15-849, which is probably on its first relist.  Authors Guild argues that full digital copying of their books by Google is not “transformative” under the fair use exception to copyright, and that the Second Circuit wrongly characterized the transformative prong of fair use as the predominant factor in determining fair use.  Google counters that Google Books constitutes “fair use” as basically a super card catalog — “a dramatically new way to find books of interest.”  Time will tell whether this case is just too interesting for the Justices to pass up at a time they are badly in need of grants for next Term.

Resist not Arrigoni Enterprises, LLC v. Durham, 15-631, rescheduled for conference four times already, and now (apparently) on its first true relist.  Come now, property-rights warriors, and learn of this private landowner who wanted to develop its plot, but needed first to crush and remove 75,000 cubic yards of bedrock over the course of years.  Local zoning did not allow rock-crushing in the property, preventing development, according to Arrigoni.  Nay, says the zoning board, the problem was not merely the crushing of rocks, but the volume of rocks: which would require crushing and removing bedrock for over ninety to one hundred twenty days per year for two to three years, with up to forty trucks per day, near residential neighbors (although, Arrigoni notes, there is already a commercial quarry nearby).  After efforts (of disputed exhaustiveness) to receive an administrative remedy to the denial of a permit failed, Arrigoni turned to federal court for a Section 1983 inverse takings claim.  But the Second Circuit held that under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, Arrigoni’s claim was not ripe because had not exhausted his state means for obtaining relief for the alleged inverse condemnation.  Arrigoni claims that courts are confused about whether exhaustion is mandatory, and when exceptions can be allowed.  Arrigoni argues that the Court should reconsider Williamson County or allow courts to waive its state-litigation requirement.  With serial rescheduling and now a relist, the case clearly has someone’s attention.  It will be interesting to see whether an eight-person Court grants cert. in a subject area that is frequently contentious.

Fain, fain deny what I have spoke (about nobody caring about rescheduled cases).  But farewell reschedule!  Dost the Court love previously rescheduled likely first-time relist Home Care Association of America v. Weil, 15-683?  Or will this relist prove false?  Only time shall tell if four Justices have true love’s passion for the question whether the Department of Labor improperly denied third-party home care companies the ability to avail themselves of statutory home-care overtime exemptions.

What satisfaction canst a habeas petitioner have tonight?  Th’ evaluation of a lower court’s faithful written opinion, perchance?  Woulds’t the Court allow a habeas claim to be reviewed without deference if the state has never expressly spoken on it, but instead spoken only to procedure or not at all?  Apparent first-time relist Kernan v. Hinojosa, 15-833, is a state-on-top habeas case that implicates a recurring difficulty that courts have applying the Antiterrorism and Effective Death Penalty Act’s presumption that a state decision rejecting a claim is a ruling on the merits.  The Ninth Circuit said that under Ylst v. Nunnemaker (which has been the subject of other relisted petitions in the past year), it should look to the last opinion in lower California state court, which was a decision based on procedural grounds, to decide that it could turn to the merits without affording the state courts deference.  And the merits question?  Whether a change to California law reducing good time credits for a prisoner is a violation of the Ex Post Facto Clause.

Hernández v. Mesa., 15-118, known to some nitwits as Jesus v. Jesus, is more Mercutio and Tybalt than Romeo and Juliet.  The case is probably on its first relist since the Court called for the views of the Solicitor General after three relists last fall.   Hernandez concerns the Bivens liability of a Border Patrol officer who, according to the complaint, art like one of those fellows that, when he enters the confines of a tavern, claps his gun upon the table and says “God send me no need of thee!,” and then draws (and fires) it on a child playing on the Mexican side of the border.  The child’s father’s petition poses two questions:  First, whether Fourth Amendment protections extend into Mexican territory near the border because that area is functionally under U.S. control (through the use of firearms); and second, whether facts not known to a Border Patrol officer (i.e., that the child was a Mexican citizen) can shield his conduct under qualified immunity.  The Solicitor General has now filed his brief.  The United States (which was a defendant below, and so is a respondent here instead of a disinterested amicus) opposes cert., and emphasizes that the real question for determining qualified immunity is whether the child had a clearly established Fifth Amendment right that was violated.

‘Tis almost morning (or at least it was when that was written).  I would have thee gone.   And yet no further can you go before we must note that relist-cum-rescheduled-case Beckworth v. Alabama, 15-7451, still awaits its new Conference date.  So like a poor prisoner in his twisted gyves, we wait to see if the Court will decide whether defense counsel may be presumed to have knowledge of exculpatory statements withheld by the prosecution.

Good night, good night!  Parting is . . . well, you all know.  That I shall say good night till it be…the week of April 18.  Fine.  We can’t rhyme and we don’t have rhythm.  But you made it to the end, didn’t you?  But be forewarned, Relist Watch may go on hiatus in late April because of an upcoming argument.

Thanks to Bryan U. Gividen for compiling the cases and drafter Ralph C. Mayrell for having a much better liberal education than I do.



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.

(relisted after the Oct.  30, Nov. 6, and Nov. 13, 2015 Conferences, and the Apr. 1, 2016 Conference)



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, 2016 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.

(relisted after the Apr. 1, 2016 Conference)

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.

(relisted after the Apr. 1, 2016 Conference)



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, 2016 Conference)


Posted in Cases in the Pipeline, Everything Else

Recommended Citation: John Elwood, Relist watch: Act II, Scene 2, SCOTUSblog (Apr. 8, 2016, 1:11 PM),