John Elwood previews 2018’s last relists. [Editor’s Note: This post was updated on Wednesday afternoon to include two additional relists, Newton v. Indiana and Mathena v. Malvo.]

Here at Relist Watch, we have a long and distinguished tradition of doing lighthearted, holiday-themed posts to commemorate the last installment of the year. It’s a great way of getting into the spirit of wearing novelty clothing while making awkward small talk in overcrowded rooms. But this year, we’re inaugurating a new tradition inspired by my family’s recent holiday card practice: doing nothing. Nothing: It’s like a lump of coal, but carbon neutral.

We’re going to skip right past the fates of last week’s relists with nary a word about the Friday grant or the opinion dissenting from denial, or the one relist denied without comment, which was outperformed by a case that hadn’t been relisted at all. Looking ahead, the Supreme Court typically relists cases on its docket on the Monday before the conference at which they are to be considered. Because the next conference isn’t until January 4, 2019, we won’t know for weeks which cases were relisted after the December 7 conference. What follows is our informed speculation based on our review of the dockets.

First up is a case whose arrival we anticipated in an earlier edition, Yovino v. Rizo, 18-272. The case involves salaries for the Fresno County, California, school system, which sets employees’ current salaries by considering their prior salaries. A recently hired female “math consultant” brought suit under the Equal Pay Act when she learned that a male colleague had been brought on at a higher pay grade. Fresno explained the difference based on the employees’ salaries at their previous jobs. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit held that prior salary is a “factor other than sex” that the Equal Pay Act explicitly allows employers to consider in setting wages. But an en banc panel changed course, holding that as “a general rule” prior pay cannot be a “factor other than sex.” The court reasoned that the Equal Pay Act’s factor-other-than-sex exception follows three narrower exceptions, all of which “relate to job qualifications, performance, and/or experience.” The majority concluded that this exception must be similarly limited, and determined that prior salary is “not a legitimate measure of work experience, ability, performance, or any other job-related quality.” The Fresno School System seeks to challenge that determination. It also raises a second question: whether a deceased judge may continue to participate in the determination of cases. The en banc decision was authored by Judge Stephen Reinhardt, who died more than a week before the decision issued. If granted, the case will overtake Lamps Plus Inc v. Varela as the last Reinhardt opinion the Supreme Court reviews.

Our next case is a sequel: Moore v. Texas, 18-443. During the case’s first trip, the Supreme Court held that the Texas Court of Criminal Appeals had violated petitioner Bobby James Moore’s Eighth Amendment rights by considering outdated medical standards for determining whether he was so intellectually disabled that he was not eligible for the death penalty. On remand, the Court of Criminal Appeals again held that Moore had failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. In his current petition, Moore contends that the Texas court essentially considered the very same factors the Supreme Court had rejected, and again contradicted current medical standards in rejecting his intellectual-disability claim. Moore further contends that even the prosecutor in his case now agrees that Moore is intellectually disabled.

Newton v. Indiana, 17-1511, and Mathena v. Malvo, 18-217, both raise the same issue involving the lawfulness of imposing a discretionary life sentence on a juvenile offender. In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Four years later, in Montgomery v. Louisiana, the court held that “Miller announced a substantive rule of constitutional law” that must be given retroactive effect in cases in which direct review was complete when Miller was decided. Numerous state courts and the U.S. Court of Appeals for the 4th Circuit have held that Montgomery expanded the prohibition against “mandatory life without parole for those under 18 at the time of their crimes” to include discretionary life sentences as well; other courts have concluded that Montgomery did no such thing. Petitioner Larry Newton, a prisoner, and Randall Mathena, the chief warden of Virginia’s high-security Red Onion State Prison, seek resolution of the issue.

As an aside, the respondent in Mathena v. Malvo will be familiar to anyone who lived in the D.C. area in fall 2002. When he was 17 years old, Lee Boyd Malvo, along with the much older John Allen Muhammad, committed a series of murders known as the “D.C. sniper” attacks. Currently, Malvo is serving multiple life sentences at Red Onion for his role as the triggerman in 10 of the shootings (Virginia executed Muhammad in 2009.).

The last likely relist is Zappos.com, Inc., v. Stevens, 18-225. The case concerns the January 2012 data breach at the company, during which hackers gained access to servers that contained the personal identifying information of 24 million customers. Zappos contends that there is a circuit split about what allegations of injury suffice to maintain a lawsuit alleging a data breach. It argues that in four circuits, bare allegations that a database containing the plaintiff’s nonpublic personal information has been breached are insufficient to create standing, without specific allegations of resulting data misuse and concrete harm, while in five circuits, such allegations are sufficient. The case would give the Supreme Court another opportunity to clarify the standing rule of Spokeo, Inc. v. Robins, in a regrettably common context: the data breach, which appears to affect approximately 100 percent of the websites I give my credit-card information to. This looks like it would be a good grant, but it may well just be a hold for Frank v. Gaos.

That leaves just one case languishing unexplained on the Supreme Court’s docket, City of Pensacola, Florida v. Kondrat’yev, 18-351. This case raises the same issue as the Bladensburg Cross cases, American Legion v. American Humanist Association, 17-1717, and Maryland-National Capital Park and Planning Commission v. American Humanist Association, 18-18, granted on November 2, namely whether the establishment clause requires removal of longstanding memorials because they take the shape of religious symbols. But the case also raises the issue of whether feeling offense about a passive religious display suffices to establish standing. The city asks the Supreme Court to consider this case in tandem with the Bladensburg cases. But you have to imagine that if the court were interested in doing that, it would have granted cert in the case this week, rather than waiting almost another month to possibly grant in early January. And although this fact isn’t dispositive, the city still has an en banc petition pending in the U.S. Court of Appeals for the 11th Circuit that is being held in abeyance for the Bladensburg cases, so Pensacola might get relief yet from the court of appeals. At bottom, I think this case is probably a hold. We report, you decide.

That’s all for this week. Thanks again to Tom Mitsch for combing the docket to find these cases. Safe travels to our entire readership and best wishes for happy holidays, no matter what rituals you observe.

 

New Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(likely relisted after the December 7, 2018, conference)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(likely relisted after the December 7, 2018, conference)

 

Zappos.com, Inc., v. Stevens, 18-225

Issue: Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.

(likely relisted after the December 7, 2018, conference)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(likely relisted after the December 7, 2018, conference)

 

Moore v. Texas, 18-443.

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(likely relisted after the December 7, 2018, conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

Hester v. United States, 17-9082

Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

(relisted after the November 16 and November 30 conferences; likely relisted after the December 7 conference)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

 

Rehaif v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30 conference; likely relisted after the December 7 conference)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, The Relist Watch Before Christmas (UPDATED), SCOTUSblog (Dec. 12, 2018, 10:43 AM), https://www.scotusblog.com/2018/12/the-relist-watch-before-christmas-2/