John Elwood reviews Monday’s relists.

Just two new relists this week. If you were trying to come up with a case caption that could make complete strangers blanch in horror and dread, this week’s first relist would be hard to beat: It takes a special person not to wince when confronted with a name like Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., 17-368. If it were possible to combine ERISA, CERCLA, FIFRA, RCRA, and, well, a couple of made up acronyms in one place, it would probably be in a case with a name like that. But if we have learned anything as a people, it’s that you can’t judge a book by looking at the cover. And as it happens, the case whose caption we are unwilling to repeat further is way more interesting than the name lets on. To be sure, it’s nowhere near as interesting as, say, a member of another country’s royal family becoming engaged or an independent agency having a succession kerfuffle. But it’s not bad for a weeknight.

SRPAIPD is an Arizona-state entity that delivers water to a smallish area of central Arizona and supports its operations by selling electricity to roughly a million Phoenix residents. A solar-panel company brought antitrust claims against SRPAIPD challenging its new rate structure; the entity that desperately needs to be formerly known as Prince sought immunity as a state entity. The district court denied immunity and the U.S. Court of Appeals for the 9th Circuit dismissed the appeal for lack of jurisdiction on the grounds that the action was interlocutory. The Agricultural Improvement and Power District now seeks to revisit that determination.

I normally try to highlight the in forma pauperis relists because IFP petitions don’t get much attention on the web, both because they’re generally unlikely grants and because the briefs are hard to obtain. But I’m giving this case second billing anyway because Monday’s IFP relist will not be granted — at least not on the question presented by the petition.

Most lawyers without Ivy-League degrees know that the double jeopardy clause prohibits the government from retrying a defendant for the same defense following an acquittal. In Richardson v. United States, the Supreme Court held that retrial is permitted if the jury was unable to reach a verdict, so a case ends in mistrial. Serrano v. United States, 17-5165, involves the question of “what happens when a jury returns a guilty verdict, and the trial court finds the evidence sufficient, but grants a new trial on other grounds” — namely, an error in the jury instructions. Both lower courts resolved that issue against Serrano. But a funny thing happened on the way to the Supreme Court: While Serrano’s cert petition was pending, he was retried and acquitted of the charges against him (which involved a felon being in possession of ammunition). Now both the government and Serrano agree that his case is moot. If you’ve been paying attention at all this year, you should be getting that sinking feeling that Tony Soprano gets when he looks up and sees a hit man come into a restaurant where he’s eating, or that subway riders get when the doors close after a mariachi band has just stepped in to their car. When a case becomes moot on appeal, the Supreme Court must confront the (now seemingly ubiquitous) question of whether it should vacate the unfavorable decision in the courts below because the party seeking review was deprived of the opportunity to win reversal – a concept that will forever be linked to the Minnesota-based underwear company that emblazoned its name on the leading case. If you don’t already know that 2017 is the Year of Munsingwear, I don’t understand how you live your life. Serrano may prove to be an important case, but probably not because of double jeopardy.

And with that, I can get back to preparing for my fifteen minutes of obscurity. Thanks to Kevin Brooks for compiling the cases in this post.


New Relists

Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., 17-368

Issue: Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.

(relisted after the November 21 conference)


Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21 conference)


Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9 and November 21 conferences)


Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3, November 9 and November 21 conferences)


Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(relisted after the October 27, November 3, November 9 and November 21 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 28, 2017, 2:11 PM),