John Elwood reviews Tuesday’s relisted cases.

Summer is finally here with all its annual traditions: LeBron James in the NBA Finals; people struggling to keep bugs from ruining their picnic; everyone scrambling to lose weight in time for beach season (yes, we use that picture every year; no, we won’t stop). Whatever weight-loss plan the Justices are on seems to be working, as for the second week in a row they shed pounds of unsightly relists. Soon the Justices will be enjoying the active lifestyles they’ve always dreamed of!

Let’s start with the only one of last week’s cases that will definitely have the attention of the Great Eight next fall. The Court granted cert. in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby, 15-513, a one-time relist, guaranteeing that we will be talking about the False Claims Act for the third Term running. But it was not the grant many False Claims Act practitioners were looking for. The Court granted State Farm’s petition limited to the first question presented: what standard governs the decision whether to dismiss a relator’s claim for violation of the False Claims Act’s seal requirement. But it saved for another day the more consequential second question: whether the False Claims Act’s knowledge requirement can be satisfied by the purported collective or imputed ill intent of employees other than the employee who presented the false claim. Now that would have been a big deal.

Two of last week’s relists yielded summary reversals. In four-time relist Johnson v. Lee, 15-789, the Court held that California’s procedural default rule barring claims raised for the first time on state collateral review was sufficiently firmly established and regularly followed to legitimately bar review of habeas claims, shockingly resulting in a reversal of the Ninth Circuit. But not all the sumrevs favored prosecutors: In three-time relist Lynch v. Arizona, 15-8366, the Court held that when the state puts a capital defendant’s future dangerousness at issue, a defendant has the right to inform the jury that the only possible sentence besides death is life imprisonment, even if he remains eligible for executive clemency; shockingly, Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from that pro-defendant result.

Finally, one-time relist Endrew F. v. Douglas County School District, 15-827, got the next-best thing to a grant: It is heading off a sojourn in Solicitor General’s office, because the Court asked to be told the views of the United States. If recent statistics are any guide, the case has about an eighty-five-percent chance of plenary review if the Solicitor General recommends a grant, and a still-respectable fifty-seven-percent chance if the office recommends that the Court deny cert. At issue in the case is what “level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.” We can’t wait to see its tan when it gets back from its vacation.

There will be no summer vacation for two relists this week. One-time relist Tucker v. Louisiana, 15-946, presented a general challenge to the constitutionality of the death penalty, as well as a challenge to Louisiana’s failure to require a jury to find beyond a reasonable doubt that death is the appropriate penalty. At least Tucker got a consolation prize: Justice Stephen Breyer, joined by Ruth Bader Ginsburg, dissented. There was no such consolation prize for Walker v. United States, 15-1027, also relisted once. It asked whether a state ruling restoring a felon’s rights under state law operated to restore his federal civil rights as well.

The Court had better not slack off on its new diet, as it still has five returning relists to shed. Three are capital cases, which seem to figure especially prominently on the Court’s docket at a time it is simply denying cert. in so many other cases. Our current relist champion is five-time relist Moore v. Texas, 15-797. Moore’s petition argues that (1) the Texas court’s decision that he is not intellectually disabled violates the Eighth Amendment because it is based on an outdated standard, and (2) executing him after more than three decades on death row would be cruel and unusual (a so-called Lackey claim). Johnson v. Carpenter, 15-1193, on its third relist, asks whether a court must categorically deny a Rule 60(b)(6) motion based on Martinez v. Ryan, which allowed certain petitioners who claimed ineffective assistance to excuse procedural defaults. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Buck v. Stephens, 15-8049, on its second relist, asks whether the Fifth Circuit used an improper standard when it denied him leave for review of his claim that his trial counsel was ineffective.  Buck’s trial counsel presented a defense expert who testified that Buck was more likely to be dangerous in the future because he is Black.

Two other cases are sticking around for their third relist.   First is Stormans, Inc. v. Wiesman, 15-862, which challenges a Washington state regulation requiring pharmacies (though not individual pharmacists) to dispense lawfully prescribed drugs or devices to patients. The challengers, pharmacists who oppose drugs they consider abortifacients for religious reasons, argue that the law’s lack of a religious exception to go with its numerous non-religious exceptions is a violation of the Free Exercise Clause. The Court requested the record, which arrived on the day of the Conference, so the law clerks are doubtless carefully reviewing it now.

The rest of the returning relists (and the one rescheduled case we deign to acknowledge) involve fallout from the Court being short one Justice. Hawkins v. Community Bank of Raymore, 14-520, began using its fifteen minutes of fame as the first case affirmed by an equally divided Court after Justice Scalia’s death. Now it is unwilling to give up the spotlight. Hawkins really thinks the Court ought to decide whether spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit and whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. Same but different is Friedrichs v. California Teachers Association, 14-915, another case affirmed by an equally divided Court that is trying to make a comeback; the Court has rescheduled it for a fifth time. Friedrichs involves the constitutionality of mandatory public-sector union fees. The teachers have asked the Court to rehear their case, but not to do so until there is a ninth Justice. The Court must be checking its crystal ball to figure out when that will happen.

As much as the Court needs to get in shape for summer, new relists are sometimes too appealing to pass up, like a nice slice of perfectly seasonal strawberry rhubarb pie or (more realistically) an entire tub of marshmallow fluff that you eat directly from the jar at 1 a.m. We have two today. The first is Bethune-Hill v. Virginia State Board of Elections, 15-680, a (relatively unusual) appeal that comes straight from a divided three-judge panel of the U.S. District Court for the Eastern District of Virginia. The case involves a challenge to the Virginia General Assembly’s state districting plan, which created twelve majority-minority House of Delegates districts. Appellants, who are residents of those districts, argue that the General Assembly drew the districts to meet or exceed a pre-determined fifty-five-percent threshold of black voting age residents without regard for each district’s unique geography, population, and political history. The district court majority concluded that all but one of the districts could be explained by traditional redistricting criteria or political circumstances and upheld the districting plan. The appellants’ jurisdictional statement claims the court erred in a number of ways, principally in determining whether race predominated as a redistricting criterion. If the Court takes this case, it would be the second consecutive Term it wades into the murky waters of Virginia redistricting; the Court unanimously dismissed a challenge to Virginia’s congressional redistricting plan on standing grounds last week in Wittman v. Personhuballah.

Second is Elmore v. Holbrook, 15-7848, a capital case (another one?) from the Ninth Circuit that was rescheduled three times before getting its first relist. Elmore pled guilty to raping and murdering his step-daughter. His trial counsel, who had no death penalty experience, advised Elmore to plead guilty then used only one mitigation defense (remorse) taking up just one hour of testimony during the penalty phase. Elmore’s petition lists several other potential mitigating factors that he claims trial counsel failed to investigate. Elmore’s trial counsel also did not challenge Elmore’s appearance in front of the jury in shackles on the first day of jury selection. The Washington Supreme Court and the Ninth Circuit held that once Elmore’s trial counsel made a reasonable strategic decision to pursue the remorse defense exclusively, it was not deficient performance to fail to pursue alternative defenses. The courts also held that Elmore’s appearance in shackles was harmless and that trial counsel’s failure to object was not prejudicial. Elmore claims that the Ninth Circuit made up a reason to excuse the shackling that was not in the state court’s opinion.

That is all we have for this week. Stick to your diets, keep shedding those relists, and we will see you all at the beach. Or just back here – here is good too.

Thanks to Bryan U. Gividen and Dmitry Slavin for compiling and drafting this update.



Issue(s): Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

(relisted after the Apr. 22, Apr. 29, May 12, May 19, and May 26 Conferences)



Issue(s): (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

(relisted after the May 12, May 19 and May 26 Conferences)



Issue(s): Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.

(relisted after the May 12, May 19 and May 26 Conferences)


Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): (1) Whether a court must categorically deny a Federal Rule of Civil Procedure 60(b)(6) motion premised on the change in decisional law produced by Martinez v. Ryan; and (2) whether the Sixth Circuit's decision to deny even a certificate of appealability in this case should be summarily reversed.

(relisted after the May 12, May 19 and May 26 Conferences)



Issue(s): Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.

(relisted after the May 19 and May 26 Conferences)



Issue(s): (1) Whether the court below erred in holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional districting criteria; (2) whether the court below erred by concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts did not amount to racial predominance and trigger strict scrutiny; (3) whether the court below erred in disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) whether the court below erred in holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) whether the court below erred in concluding that the General Assembly's predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest.

(relisted after the May 26 Conference)



Issue(s): (1) Whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins v. Virginia and Hall v. Florida, for a State court to refuse to accept data from clinical interviews with persons who knew a death-sentenced prisoner during the “developmental period” where the uncontested testimony and scientific and clinical consensus finds such data to be useful in determining the second criteria for intellectual disability, i.e., adaptive functioning deficits; (2) whether it violates the Eighth and Fourteenth Amendments, as understood in Atkins and Hall, for a State court to impose a requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins; and (3) whether it violates the Fourteenth Amendment Due Process Clause for a State court to create a novel requirement that a death-sentenced prisoner present “normed data” from clinical instruments in order to prove the second criteria for intellectual disability under Atkins, and impose that requirement to deny relief to a prisoner who had no notice of the requirement during his evidentiary hearing.

(relisted after the May 26 Conference)



Issue(s): (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

(relisted after the May 26 Conference)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 3, 2016, 11:13 AM),