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Relist Watch

John Elwood reviews Monday’s relists.

The feeling of disbelief is palpable. Win or lose, you’re lying if you say you expected this. And yet it’s a decision we all must accept, and we must come together as a nation and move on. Sure, I was as surprised as anyone when the court denied cert in OXY USA v. David Schell, 16-107, the one-time relist involving when a court should order vacatur when a case becomes moot on appeal. But I have faith in the system and confidence that what the court does is for the best. [Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in OXY.]

Kidding aside, while you might have lost faith in political pollsters, Relist Watch will never let you down. How can it, when your expectations are already so (justifiably) low? With relists’ 49.2% accuracy rate in forecasting grants, they are nearly as good a predictor as the standard metaphor for random chance. True to form, one relist was granted out of the last conference. Mind you, in this line of work, 50/50 passes for pretty good.

On to the new relists. We have two. First up is White v. Pauly, 16-67, which joins returning relist District of Columbia v. Wesby, 15-1485, among the contentious cases on the court’s Section 1983 docket. In White, three state police officers, following up on a reported road rage incident, approached a home where the suspects were believed to be. The police later testified that they announced to the suspects that they were “State Police” and ordered them to leave the house, and that the suspects shouted back, “We have guns,” before firing two shotgun blasts. When police saw one suspect take aim at an officer, they shot and killed him. The suspect’s estate sued under Section 1983, claiming that the officers engaged in an unreasonable use of deadly force under clearly established law. The district court denied the officers’ summary judgment motion because it found a genuine issue of material fact involving whether the police provided adequate notice that they were police rather than intruders and whether they should have warned the suspect before shooting. The U.S. Court of Appeals for the 10th Circuit affirmed over a dissent, and the full court then denied rehearing en banc over two dissentals and one concurral. The officers claim the 10th Circuit erred in two ways. First, they argue that the 1oth Circuit incorrectly focused on the point of view of the suspects, who purportedly feared they were under attack, rather than the officers’ perspective. Second, the officers contend that the 10th Circuit denied them qualified immunity based on a reading of the constitutional rights at too high a level of generality, and that as a result it held them accountable for rights they could not have been aware of.

The second new relist is Broom v. Ohio, 16-5580, in which the state of Ohio tried and failed to execute Romell Broom for the rape and felony murder of Tryna Middleton. The state attempted, multiple times over two hours, to connect Broom to an IV through his “already bruised and swollen arms” and his ankle to administer the lethal injection cocktail. After two hours, the state gave up, but now it plans to again try again. Broom, seeking review of an unfavorable decision by the Supreme Court of Ohio, argues that the first attempt to execute him was cruel and unusual punishment, and that the appropriate remedy is to bar his future execution; Broom also argues that a second attempt would violate the Eighth Amendment and the double jeopardy clause.

The court is taking tomorrow off as an official day of mourning for the denial of OXY v. Schell, so perhaps we will see movement on these relists as early as this afternoon. Until next time!


Granted Relists


Issues: (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)


Denied Relists

[page]16-107[/page] (relisted after the October 28 conference)


Returning Relists

[page]16-5247[/page] (relisted after the September 26, October 7, October 14, October 28 and November 4 conferences; seems like we should be getting an opinion in this case soon)


[page]15-1485[/page] (relisted after the October 28 and November 4 conferences)


[page]15-9329[/page] (relisted after the October 28 and November 4 conferences)


New Relists


Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

(relisted after the November 4 conference)


Broom v. Ohio

Issue: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4 conference)


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

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 10, 2016, 9:19 AM),