John Elwood reviews Monday’s relists.

With so many long-suffering people now experiencing the unfamiliar (and probably uncomfortable) sensation of joy, it falls to the experts at Relist Watch to spring into action and bring back the reassuring embrace of disappointment. We have our work cut out for us this week, because it was generally good news for the relists in our lives: Five relists ascended to the promised land, five won vacatur, one relist is returning again and just one was sent home empty-handed.

We have four new relists this week, but in keeping with our new philosophy, we won’t discuss all of them. District of Columbia v. Wesby, 15-1485, is the last reference to the federal district you’ll hear this week that isn’t calculated to inspire revulsion. In this case, the District of Columbia challenges nearly $1 million in liability imposed on two D.C. police officers who responded to a noise complaint and found a vacant house that appeared to have been converted into a makeshift strip club. When police arrived, the revelers scattered, evidently assuming they would never be found if they hid in such innovative places as closets. When police interviewed them, many asserted that they were unaware they were trespassing because someone named “Peaches” had given them permission to enter the house. Peaches, meanwhile, admitted she did not have the owner’s permission to welcome the revelers. The police arrested the party-goers for trespassing. After charges were dropped, 16 of those arrested sued the police under Section 1983, arguing that since the partiers told police that they believed they had received permission, the police knew the partiers lacked the criminal intent required for trespassing. The district court and the U.S. Court of Appeals for the D.C. Circuit agreed. It didn’t sit quite right with Judge Brett Kavanaugh that the police were denied qualified immunity; he, along with several colleagues, issued a dissental arguing that the decision was inconsistent with Supreme Court precedent and that further review was warranted. That prompted a concurral from the author of the panel opinion, Judge Cornelia Pillard, arguing that such a fact-bound decision warranted no further review. The competing opinions from alumni of the Office of the Solicitor General make up the most impressive matched set of judicial cert petition and judicial brief in opposition that I’ve seen recently. Tune in Friday (or Monday) to see which view prevails.

This has been a week of unusual situations, and here is one more. The defendant in capital case Stokes v. South Carolina, 15-9329, was represented in his murder case by a lawyer who had previously prosecuted him successfully for assaulting his ex-wife. In the penalty phase of the murder prosecution, the ex-wife in question testified in support of the death penalty, but rather than step aside or put the court on notice of the circumstances, the lawyer marched ahead. In post-conviction relief proceedings, the state court found no issue with either the fact of the conflicted representation or the lack of a record showing the conflict was aired in court. In his cert petition, Sammie Stokes argues that his counsel “conspicuously pulled his punches, bypassing readily available opportunities for impeachment and never letting on that he had previously persuaded a different jury to accept the very story, told by the very witness, he was now obligated to confront and discredit.”

With our new, shortened format, I like to reserve Relist Watch for the most interesting cases. But I’ll tell you about this one anyway. The petitioner in OXY USA v. David Schell, 16-107, asks under what circumstances a court of appeals should vacate a lower court’s decision if, during the appeal of that decision, the appeal is mooted because of the appellant’s voluntary conduct. The petitioner sold the oil and gas assets at issue in the litigation for business reasons unrelated to the pendency of the litigation, and argued that the case was not moot. The U.S. Court of Appeals for the 10th Circuit concluded that the case was moot, but refused to vacate the lower-court decision although the litigation “played no significant role” in the sale, holding that a party can obtain vacatur under such circumstances only if its reasons for undertaking the mooting conduct were “commendable.” Because the 10th Circuit majority was “entirely phlegmatic regarding the sale,” it denied vacatur. Oxy seeks review of that decision. Why would I ever waste your time describing this case? Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.

Regrettably, I lack the time to tell you about the last remaining new relist, an important preemption case captioned Coventry Health Care of Missouri, Inc. v. Nevils, 16-149. But I should give a trigger warning to readers who are sensitive to discussions of the Federal Employees Health Benefits Act: The petition is not a safe space.


Granted Relists

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner at the cert stage in this case.

Issue(s): Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

(relisted after the September 26, October 7 and October 14 conferences)



Issue(s): Whether the Federal Arbitration Act pre-empts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

(apparently rescheduled before the October 7 conference so it could be considered with TAMKO Building Products, Inc. v. Hobbs, 15-1318; relisted after the October 14 conference)



Issue(s): Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

(relisted after the October 14 conference)



Issues: Whether the Supreme Court’s decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

(relisted after the October 14 conference)



Issues: (1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

(relisted after the October 14 conference)


Summarily Decided Relists


Issues: (1) Whether a sentencing judge’s exercise of discretion not to impose a death sentence is the functional equivalent of the findings required under Montgomery v. Louisiana to impose a sentence of life without parole on a juvenile offender; and (2) if not, whether the court should vacate the decision of the Arizona Court of Appeals and remand for further consideration in light of Montgomery.

Result: Vacated and remanded for reconsideration in light of Montgomery, with Justice Sotomayor concurring and Justice Alito, joined by Justice Thomas, dissenting.

Together with related cases Tatum v. Arizona, 15-8850; Najar v. Arizona, 15-8878; Arias v. Arizona, 15-9044; and DeShaw v. Arizona, 15-9057 (relisted after the September 26, October 7 and October 14 conferences)


Denied Relists


Issue(s): Whether an individual inside a parked vehicle is seized within the meaning of the Fourth Amendment to the Constitution when a police officer activates a cruiser's emergency lights while positioned directly behind the parked vehicle, approaches the vehicle, knocks on the window of the vehicle, and directs the occupant to roll down the window.

(relisted after the October 7 and October 14 Conferences)


Returning Relists


Issue(s): Whether a state court violates a petitioner's federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26, October 7, October 14 and October 28 conferences)


New Relists


Issue(s): (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28 conference)



Issues: (1) Whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and (2) whether a valid waiver of the right to conflict-free counsel can be found where the trial record contains no mention of a conflict or waiver, and the post-conviction record does not address, let alone satisfy, the constitutionally required elements of a valid waiver.

(relisted after the October 28 conference)


Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): Whether the fact that a pending appeal “played no significant role” in an appellant's voluntary conduct mooting a case, Alvarez v. Smith, is entitled to controlling weight in determining whether a lower court judgment should be vacated, as a majority of courts of appeals have held; or whether a party must make an additional showing of compelling circumstances warranting vacatur, as the 10th Circuit held in this case.

(relisted after the October 28 conference)



Issue(s): (1) Whether the Federal Employees Health Benefits Act pre-empts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts; and (2) whether FEHBA's express-pre-emption provision, 5 U.S.C. § 8902(m)(1), which expressly “preempt[s] any State or local law” that would prevent enforcement of “the terms of any contract” between the Office of Personnel Management and a carrier which “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits)[,]” violates the supremacy clause.

(relisted after the October 28 conference)


Thanks to Bryan U. Gividen and Ralph C. Mayrell for compiling and drafting this update.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 3, 2016, 5:32 PM),