John Elwood reviews Monday’s relists.

In a week where there was no shortage of bigly stories for court-watchers, it’s hard to know where to begin. The really tough questions the Senate threw at Supreme Court nominee Neil Gorsuch this week? Or the fact that we as a nation remain deeply divided on basic issues, unable even to recognize the common humanity of those who disagree? But at least the rough and tumble of public debate has achieved consensus on one issue: There must be punctuation to reflect the dopey blank-stare pause between “uuuh” and “what?,” known to grammarians as an “Oxnard Comma.”

While the two serial relists that have been hanging around for a month or more return for another conference, last week’s three new relists were unceremoniously shown the door without so much as a dissent from denial. The hardy duo of returning relists are joined this week by four new hopefuls. Every one involves a very narrow issue – none of them is the sort of blockbuster the court has produced in recent years. The cases fall into two broad categories – we’ll briefly describe them all, alternating between cases involving human drama and nerd-fests.

Ayestas v. Davis, 16-6795, has drama – it’s a capital case in which the charging memo recommending the death penalty evidently stated that one of the two main reasons for seeking the ultimate punishment against Carlos Ayestas was that “THE DEFENDANT IS NOT A CITIZEN.” (Based on the portion of the memo that I’ve seen, the “shift” keys on the author’s computer have never felt a pinkie’s sweet caress.) That gets the reader’s attention, even without the screaming caps, but then you get to the legal questions, which are not quite as captivating, involving as they do whether the district court on Ayestas’ habeas claim abused its discretion by refusing a stay and amendment necessary to exhaust claims of error and whether the court of appeals erred in denying resources to investigate ineffective assistance of counsel claims.

If that doesn’t grab you, how about Leidos, Inc., fka SAIC, Inc. v. Indiana Public Retirement System, et al., 16-581? That case involves a question presented that mentions a circuit split involving about a quarter of the American landmass and all of our money, between the U.S. Courts of Appeals for the 2nd, 3rd and 9th Circuits, and implicating the idea that “companies can control what they have to disclose … by controlling what they say to the market.” The 2nd Circuit held that a particular Securities and Exchange Commission regulation created a duty to disclose that was actionable under Rule 10b-5 even if those disclosures are not necessary to make companies’ affirmative statements not misleading. Petitioner Leidos, Inc. says the 3rd and 9th Circuits take the opposite position. The regulation in question is Item three-oh-three of SEC regulation S-K. Readers will have to decide which is more obscure – the regulation in question, or the pop-culture reference at the associated hyperlink.

Still not hooked? Needham v. Lewis, 16-881, involves a dramatic confrontation between police office Matthew Needham and Dominique Lewis that was completely captured in the officer’s dashboard video. According to the petition, Lewis, a back-seat passenger in a stopped vehicle, jumped into the front seat and began driving directly at Needham, and even swerved to pursue him after Needham moved to get out of the way. The case presents fact-intensive questions about whether Lewis posed an imminent threat to Needham, who shot and killed Lewis.

That leaves our remaining nerd-fest. U.S. Bank National Association v. Village at Lakeridge, 15-1509, involves questions so important for the Republic, so pressing for our body politic, that the Supreme Court of the United States called for, and now has received, the views of the solicitor general. The Bankruptcy Code gives special treatment to creditors who are considered “insiders.” The code provides that before a Chapter 11 bankruptcy plan for reorganization may be approved, at least one class of impaired claims must vote in favor of the plan, determined without including the favorable vote of any insider. There are several questions, but the central one is something like this: When a creditor buys a claim from an insider, does the creditor acquire the claim-holder’s insider status? The Supreme Court thought enough of the issue to request the view of the solicitor general, who opined that, notwithstanding “some imprecise language,” the 9th Circuit basically got things right in holding that a person does not become an insider solely by acquiring a claim from an insider.

We can all agree that all four of these cases are unquestionably among the most important 70 or so cases in America. Tune in on Monday to see which of these clearly deserving cases is unjustifiably denied a place on next fall’s docket. Until next time!

Thanks to Bryan U. Gividen for compiling the cases in this post.


Returning Relists

Salazar-Limon v. City of Houston
Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did. 

(relisted after the February 17, February 24, March 3 and March 17 conferences)


Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3 and March 17 conferences)


New Relists

U.S. Bank National Association v. Village at Lakeridge
Issues: (1) Whether an assignee of an insider claim acquires the original claimant’s insider status, such that his or her vote to confirm a cramdown plan cannot be counted under 11 U.S.C. § 1129(a)(10); (2) whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the Third, Seventh, and Tenth Circuit Courts of Appeal, or the clearly erroneous standard of review adopted for the first time by the Ninth Circuit Court of Appeal in this action; and (3) whether the proper test for determining non-statutory insider status requires bankruptcy courts to conduct an “arm’s length” analysis as applied by the Third, Seventh and Tenth Circuit Courts of Appeal, or to apply a “functional equivalent” test which looks to factors comparable to those enumerated for statutory insider classifications as erroneously applied for the first time by the Ninth Circuit Court of Appeal in this action. CVSG: 2/13/2017.

(relisted after the March 17 conference)


Leidos, Inc., fka SAIC, Inc. v. Indiana Public Retirement System, et al.
Issues: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.

(relisted after the March 17 conference)


Needham v. Lewis
Issues: 1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.

(relisted after the March 17 conference)


Ayestas v. Davis
Issues: (1) Whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution’s decision to seek the death penalty; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.

(relisted after the March 17 conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 24, 2017, 10:24 AM),