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Relist Watch

John Elwood reviews Monday’s relists.

For a brief time on Monday, the news from 1 First Street was so big, it was as if the court still had the power to dominate national news – or so it seemed to a certain type of person (cough cough #AppellateTwitter). That was because the justices granted certiorari on one of a group of cases asking whether the government’s warrantless seizure of historical cell-site records violated the Fourth Amendment. Six-time relist Carpenter v. United States, 16-402, gives the court its first real opportunity to revisit whether government demands for data held by third parties implicates the Fourth Amendment since any of the current justices arrived on First Street. The case thus wins an automatic bid to be on every list of the most important cases of October Term 2017. But excitement over the grant was short-lived, because, at least for a certain type of person, the case posed a clear and present danger to decent society. Anyone could see that no matter how the court decided the case, there was an unacceptable risk that the case name would be exploited to inflict colon-laden pun titles on the innocent public.

With the grant in Carpenter, the rest of the cell-site cases have undoubtedly gone into suspended animation as holds. The Covington twins out of North Carolina met very different fates, as rival siblings often do. The court summarily affirmed North Carolina v. Covington, 16-649, which sought review of a three-judge district court’s decision invalidating the state’s legislative map as the product of unconstitutional racial gerrymandering. That has required the state of North Carolina act quickly on remand. The petition in North Carolina v. Covington, 16-1023, fared better – the court granted certiorari, vacated and remanded. That case asked whether the same district court exceeded its jurisdiction by then partially invalidating the results of the 2016 election held using the old districts, ordering off-year special elections in substantial parts of the state, and doing all of that after North Carolina had already filed its notice of appeal. Harris v. Cooper, 16-166, meanwhile, was relisted yet again. That case involves allegations of unconstitutional partisan gerrymandering. As we noted last week, the court has requested briefing on standing issues, so it’s a sure thing that the Supremes are taking a close look at this. The issue is splitless, of course, but I don’t think it is lost on anyone that so were Carpenter and Husted v. A. Philip Randoph Institute, 16-980, and Patchak v. Zinke, 16-498, and (part credit; it’s a patent case) SAS Institute Inc. v. Lee, 16-969.

All of last week’s other relists are back again. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, is now on its 12th relist, making it the second-most relisted case that I am aware of. The first-place case was relisted something like 26 times, so Masterpiece has a way to go before it’s in Hall of Fame territory.

On to new relists. The biggest news of the week is Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712. Like SAS Institute, it involves so-called “inter partes review.” People looked at me like I was some kind of freak – even more than usual – when I started spouting this unfamiliar Latin phrase in discussing SAS Institute, but even if you aren’t a patent practitioner, you should get to know this. Inter partes review is an administrative mechanism the America Invents Act created in 2011 to allow people to challenge issued patents. It authorizes the Patent Trial and Appeal Board to reconsider a patent and invalidate it on the ground that it was either obvious or anticipated by prior art. But while SAS Institute asks a fairly narrow question about whether the board has to issue an opinion addressing all of a challenger’s grounds for invalidating the patent, Oil States is playing for all the marbles. The petition’s central claim is that inter partes review is a big fat violation of Article III and the Seventh Amendment because it provides for a nonjury, nonjudicial forum for resolving disputes about the validity of the patent. The case also raises two other issues about aspects of inter partes review and their consistency with Supreme Court precedent.

In Jenkins v. Hutton, 16-1116, the state of Ohio seeks review of a decision by the U.S. Court of Appeals for the 6th Circuit granting a prisoner habeas relief. I guess there’s a first time for everything. Percy Hutton was convicted and sentenced to death for killing a man back in the 1980s over the theft of a device so primitive its functions are not included on any cellphone. On habeas review, Hutton raised an issue he hadn’t raised on direct appeal before the Ohio courts involving an error that occurred at the “sentencing stage,” after the jury had convicted him of murder but before it decided whether to impose the death penalty. Hutton’s failure to raise the issue on direct appeal would ordinarily result in a procedural bar that would prevent federal courts from reviewing the claim. But after the district court denied habeas relief, a divided panel of the 6th Circuit reversed. The court excused Hutton’s procedural default not based on any exception to the procedural default rule that Hutton himself had advanced, but on one the court invoked on its own — the “fundamental miscarriage of justice” exception. The majority concluded sua sponte that Hutton was “innocent of the death penalty” — a strange phrase meaning that “but for the constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The court also held that a court cannot cure sentencing-stage error by reweighing the aggravating factors itself. In doing so, the 6th Circuit applied Ring v. Arizona – which held that a jury must find the aggravating factors that make a defendant death-penalty eligible – to the stage in which aggravating factors are weighed against mitigating factors.

(As an aside, the Ohio solicitor general routinely names the 6th Circuit in his petitions’ questions presented, as though the identity of the decision-maker is itself a basis for reversal.)

Our last new relist is Hicks v. United States, 16-7806. Marcus Deshaw Hicks pleaded guilty to selling 50 grams or more of crack cocaine and, because of a prior conviction, was sentenced to 20 years (!) of imprisonment. Hicks was sentenced after Congress enacted the Fair Sentencing Act reducing crack sentences, but before the Supreme Court held in Dorsey v. United States that the law applies to people who, like Hicks, had committed an offense but not yet been sentenced at the time of the statute’s enactment. Hicks’ appellate lawyer failed to raise the issue, and then compounded the error by not advising Hicks of his right to seek certiorari. Now on collateral review and with a new lawyer, Hicks argues that Dorsey applies and that the court should grant the petition, vacate the judgment and remand for further consideration in light of Dorsey. The acting U.S. solicitor general agrees with Hicks that a GVR is warranted, but argues that the court of appeals should apply plain-error analysis on remand; Hicks, on the other hand, wants the court of appeals to vacate and send the case back to the district court. The justices may be working out the scope of any remand.

That’s all for this week. Tune in next week for more fake news and to see whether the “Call for Reply” becomes a thing. Now if you’ll excuse me, I have to be going; there’s a bar in D.C. that’s giving free drinks anytime anyone uses the #AppellateTwitter hashtag.

Thanks to Bryan U. Gividen for compiling the cases in this post, and the voices in my head for drafting it.


New Relists 

Jenkins v. Hutton, 16-1116

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitleys actual-innocence exception; and (2) whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona‘s standards from the eligibility phase into that weighing phase.

(relisted after the June 1 conference)


Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712

Issues: (1) Whether inter partes review, an adversarial process used by the Patent and Trademark Office to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury; (2) whether the amendment process implemented by the PTO in inter partes review conflicts with Cuozzo Speed Technologies, LLC v. Lee and congressional direction; and (3) whether the “broadest reasonable interpretation” of patent claims, upheld in Cuozzo for use in inter partes review, requires the application of traditional claim construction principles, including disclaimer by disparagement of prior art and reading claims in light of the patent’s specification.

(relisted after the June 1 conference)


Hicks v. United States, 16-7806

Issues: (1) Whether petitioner should have been sentenced under the Fair Sentencing Act of 2010; and (2) Whether the court of appeals offered an insufficient explanation for denying petitioner a certificate of appealability.

(relisted after the June 1 conference)


Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

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, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18, May 25 and June 1 conferences)


Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18, May 25 and June 1 conferences)


Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18, May 25 and June 1 conferences)


Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18, May 25 and June 1 conferences)


Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18, May 25 and June 1 conferences)


Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the 14th Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25 and June 1 conferences)


Virginia v. LeBlanc, 16-1177

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act in holding that the Virginia Supreme Court’s decision in Angel v. Commonwealth was an objectively unreasonable application of Graham v. Florida, thereby creating a split with Virginia courts over the validity of Virginia’s parole regulations, and a split with other jurisdictions over whether parole eligibility at age 60 constitutes a life-without-parole sentence.

(relisted after the May 25 and June 1 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 8, 2017, 1:36 PM),