Relist Watch

By John Elwood
on Apr 19, 2018 at 3:38 pm

John Elwood reviews Monday’s relists.

April is a tricky time. By this late in the year, my skin is usually burned – although since I graduated from law school, that most often results from me setting the monitor contrast wrong. But there’s a new reason for my pallor this year. Under the new calendar – I’m talking here about the one that eliminated spring – it’s January 110th. On the plus side, I haven’t seen any mosquitoes yet.

There is enough action on the relist front this week that I’ll keep preliminaries to a minimum. This week saw the departure of what I believe to be the second-most relisted case of all time, Sykes v. United States, 16-9604, which leaves after 17(!) relists. It and the thrice-relisted Brown v. United States, 17-6344, both challenged Armed Career Criminal Act enhancements that rested on Missouri second-degree burglary convictions. The Supreme Court sent both back to the U.S. Court of Appeals for the 8th Circuit for further consideration in light of that court’s recent en banc decision holding that Missouri’s second-degree burglary statue is not a “violent felony” for ACCA purposes.

New week, new ACCA cases. The likeliest grant this week seems to be the government’s cert petition in United States v. Stitt, 17-765, which presents the question whether a conviction for burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The petition seeks review of the en banc decision of the U.S. Court of Appeals for the 6th Circuit holding (over the dissent of six judges) that the robbery of nonpermanent or mobile structures does not qualify. The court has relisted that case and fellow-travelers United States v. Sims, 17-766, out of the U.S. Court of Appeals for the 8th Circuit, and Smith v. United States, 17-7517, out of the 7th. We’ll see if the court agrees with the government that Stitt is the best vehicle to address an issue that obviously arises a lot.

That brings us to what is undoubtedly this week’s most interesting group of cases. Courts have long held that notwithstanding the double jeopardy clause, the federal government can prosecute criminal conduct that has already been the subject of a state-court trial because different sovereigns are acting in each instance. This idea is commonly known as the “dual sovereignty” doctrine. This week, the court has relisted four cases (and rescheduled a fifth) that seek to revisit that doctrine. I had long been puzzled because three cases presenting this issue had sat without action on the court’s docket since early January – Gamble v. United States, 17-646, Tyler v. United States, 17-5410, and Ochoa v. United States, 17-5503. With this week’s relists, we finally know why: The court was waiting for the government to file its brief in opposition in a fourth case raising the issue, Gordillo-Escandon v. United States, 17-7177. The fifth (rescheduled) case, has by far the best name: Bearcomesout v. United States, 17-6856. As you might have guessed given the caption, it involves whether dual sovereignty bars a federal prosecution after the defendant has been tried in Indian tribal court. It would be a big deal if the court grants review, but I have a sneaking suspicion that this is more dissent–from–denial-of-cert material.

The last criminal case is Bucklew v. Precythe, 17-8151, a habeas corpus petition involving a death-row inmate’s challenge to Missouri’s method of execution. You may want to skip to the next paragraph now. Bucklew argues that his rare medical condition – cavernous hemangioma, which causes inoperable, blood-filled tumors to grow in his throat and around his face, head, and neck, and which are susceptible to rupturing – will render Missouri’s lethal injection procedure extremely painful, and will likely cause him to feel as though he is choking on his tumors and to aspirate his own blood.

Finally, the court does do some civil cases from time to time. Frank v. Gaos, 17-961, features the rare case when a well-known appellate lawyer appears as the named petitioner, rather than as counsel. Ted Frank asks the Supreme Court to put an end to the use of a trust-law doctrine known by the legal French term “cy pres” in class-action settlements. Frank argues that the doctrine is being abused to funnel settlement money to charities favored by class counsel. The case involves a judgment of the U.S. Court of Appeals for the 9th Circuit upholding a class-action settlement against Google that gave no money to the class members but awarded $5.3 million to third parties, including class counsel’s alma maters.

The Supreme Court on Tuesday affirmed a decision by Judge Stephen Reinhardt, the “liberal lion of the [U.S. Court of Appeals for] the 9^th Circuit” who died in late March at the age of 87. Although some speculated that Sessions v. Dimaya would be the last Reinhardt case to be reviewed by the Supreme Court, Lamps Plus, Inc. v. Varela, 17-988, might yet hold that distinction. Indeed, the petitioner’s counsel identified Reinhardt by name on the “question presented” page. The case asks whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements. Although the arbitration clause did not mention class arbitration, the court of appeals, by a 2-1 vote in a memorandum opinion, inferred mutual assent to class arbitration from the more general language of the arbitration agreement, such as the statement that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to … employment.” Judge Ferdinand Fernandez, in dissent, characterized the opinion as a “palpable evasion of Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684-85 (2010),” which, the petition notes, stated that courts may not presume consent to class arbitration from “mere silence on the issue of class arbitration” or “from the fact of the parties’ agreement to arbitrate.” In this as in so many things, wording is critical. The petition ends with a plea for summary reversal. Which, given the current state of things, will certainly not be summery reversal.

I’ll be here all week. Remember to tip your waitresses.

Thanks to Kent Piacenti for compiling the cases in this post.

New Relists

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.