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Relist Watch: Life during wartime

John Elwood briefly reviews Monday’s relists.

I realized the quarantine had been dragging on a long time when a car passed me on the street and I saw that the new Virginia license plate motto is, “Wow. It’s been a long week.” Henceforth, it is also the official motto of Relist Watch.

With so much going on in the world right now, the relists are having a hard time keeping up. The justices gave just one of last week’s relists the nod, and unsurprisingly, it was the one in which the government is the petitioner, Brownback v. King, 19-546. So sometime in the next 12 months, we’ll be finding out whether a final judgment under the Federal Tort Claims Act bars a Bivens claim arising out of the same course of conduct. (The answer, I predict, will be “yes.”) If you think the order of words doesn’t matter, consider what happened to the case with nearly the same caption, King v. Brownback, 19-718. The justices denied James King’s conditional cross-petition. They also denied cert in the last of the new relists, Valdez v. United States, 19-6062.

The court also turned down seven-time relist Cannon v. Seay, 19-311, which sought review of a decision of the U.S. Court of Appeals for the 4th Circuit that South Carolina argued was insufficiently deferential to the trial judge’s determination that there was manifest necessity to grant a mistrial over the objection of the defendant, Broderick Seay. Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh noted on the order list that they would grant the petition for certiorari.

All the rest of the cases are back. And given how long they’ve been pending, we’re due for more opinions soon.

Only one new relist this week, Robinson v. Department of Education, 19-512. Petitioner Anthony Robinson says that he discovered that people had applied for student loans using his name and forging his signature. The Department of Education was reporting fraudulent student loan accounts to credit bureaus, and Robinson disputed the loans, claiming identity theft. When the Department of Education refused to remove the fraudulent accounts from his credit reports, Robinson sued, arguing that the department is subject to a Fair Credit Reporting Act provision requiring a “person” to conduct an investigation after receiving notice that it may have provided inaccurate information to a consumer reporting agency. The U.S. Court of Appeals for the 4th Circuit concluded that this provision did not unambiguously waive sovereign immunity. Though the government concedes that there is “a division of authority among the circuits on this question,” it argues that the court should not grant review because “the only circuit to find a waiver of sovereign immunity in FCRA has since retreated from that position in a subsequent published decision.” With the assistance of new counsel, Robinson argues that the split still exists. We’ll have a better idea Monday what the justices think.

In such grim times, I am not observing April Fool’s Day. I know we’re all getting a lot of family time already, but here are some cute home videos to help us appreciate how good we have it.


New Relists


Robinson v. Department of Education, 19-512

Issue: Whether the Fair Credit Reporting Act authorizes consumers to file civil suits against federal governmental agencies under 15 U.S.C. § 1681n and § 1681o.

(relisted after the March 27 conference)


Returning Relists


Andrus v. Texas, 18-9674

Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.

(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20 and March 27 conferences)


The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672

Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.

(relisted after the January 24 January 24, February 21, February 28, March 6, March 20 and March 27 conferences)


VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446

Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.

(relisted after the February 21, February 28, March 6, March 20 and March 27 conferences)


Halprin v. Davis, 19-6156

Issue: Whether Randy Halprin’s second federal petition raising a judicial bias claim is “second or successive” under 28 U.S.C. § 2244(b)(2) if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprin’s initial habeas proceedings in the district court created Halprin’s first fair opportunity to present his claim.

(relisted after the February 21, February 28, March 6, March 20 and March 27 conferences)


Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455

Issues: (1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.

(relisted after the March 6, March 20 and March 27 conferences)


United States v. California, 19-532

Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.

(relisted after the March 6, March 20 and March 27 conferences)

Recommended Citation: John Elwood, Relist Watch: Life during wartime, SCOTUSblog (Apr. 1, 2020, 10:31 AM),