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The Return of Relist Watch SelectTM

John Elwood reviews Monday’s relists … barely.

Because I am composing (some would say composting) this at 34,000 feet with minimal Internet, even less time, and only as much legroom as I can obtain by storing unused limbs in the overhead bin, this week we’ll once again be favoring our readership with the affordable luxury of Relist Watch SelectTM. For times like this … it’s Relist Watch Select™.

Before proceeding to phone it in flagrantly, let me pause just long enough to note that with the Supreme Court putting partisan-gerrymander case Gill v. Whitford, 16-1161, on its merits docket for next fall as anticipated by last week’s post (and granting Wisconsin its requested stay), October Term 2017 is shaping up nicely after two lackluster terms. (Harris v. Cooper, 16-166, meanwhile, looks like it’s being held for Gill.)

So let’s see what new grants may be in the offing for next Monday. The biggest of this week’s four new relists, at least as a doctrinal matter, is probably the one involving a legislature’s ability to limit how just compensation for a taking of private property is calculated. But for day-to-day importance, the one involving the whistleblower provisions of Dodd-Frank is nothing to sneeze at. The one involving nonjudicial foreclosure of association liens seems unlikely to cause people to run afoul of the Supreme Court’s rule against paid line-standers. As someone who does more government contracts cases than intellectual property cases before the U.S. Court of Appeals for the Federal Circuit, I’m always interested when the Supreme Court takes a case from the Federal Circuit that doesn’t involve IP. But the last of this week’s new relists, which involves the Federal Circuit’s rule for which party to a disability dispute has to establish whether Veterans Affairs doctors who submit opinions are competent, taxes even my ability to feign interest.

That’s all for this week. We have only one more scheduled conference (and one unscheduled-but-foreseeable conference) before October Term 2016 effectively ends. Time for the court to unburden itself of all the serial relists that it has been carrying around since as far back as February 24. I, for one, can’t wait to see what they’ve been working on.

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


New Relists

Mathis v. Shulkin, 16-677

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred by creating a presumption of competency for all U.S. Department of Veterans Affairs medical evaluators, (including physician assistants, nurses and other non-physician health practitioners) to provide an expert opinion on any medical issue, thereby placing the burden on disabled veteran claimants, most of whom are pro se and many of whom suffer “from very significant psychiatric and physical disabilities,” to rebut the presumption by raising a competency objection, by ascertaining evidence of the evaluator’s lack of qualifications, and then by articulating specific reasons in support of the competency challenge.

(Relisted after the June 15 conference)


Bay Point Properties, Inc. v. Mississippi Transportation Commission, 16-1077

Issues: (1) Whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated; and (2) whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement.

(Relisted after the June 15 conference)


Bourne Valley Court Trust v. Wells Fargo Bank, NA, 16-1208

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Nevada’s statute authorizing nonjudicial foreclosure of association liens, Nev. Rev. Stat. §§ 1116.3116 et seq., was facially unconstitutional under the due-process clause for not requiring direct notice to junior lienholders, when the only state action involved was the enactment of the statute regulating the private sale.

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

(Relisted after the June 15 conference)


Digital Realty Trust, Inc. v. Somers, 16-1276

Issue: Whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”

(Relisted after the June 15 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, June 1, June 8 and June 15 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, June 1, June 8 and June 15 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, June 1, June 8 and June 15 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, June 1, June 8 and June 15 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, June 1, June 8 and June 15 conferences)


Hicks v. United States, 16-7806 

Issues: (1) Whether the 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 the petitioner a certificate of appealability.

(relisted after the June 1, June 8 and June 15 conferences)


Coutts v. Watson, 16-1075

Issue: Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.

(relisted after the June 8 and June 15 conferences)


Johnson v. Alabama, 16-7835

Issue: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

(relisted after the June 8 and June 15 conferences)

Recommended Citation: John Elwood, The Return of Relist Watch SelectTM, SCOTUSblog (Jun. 21, 2017, 10:59 AM),