RELIST WATCH

Pipeline pay, pandemic preemption, professors’ parity, and a prisoner’s plea

By John Elwood

on Nov 20, 2025

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court continues to churn through its relist rolls. True to our prediction that the case was a “likely grant,” the court granted review in one-time relist Noem v. Al Otro Lado, which presents the question whether a noncitizen who is stopped on the Mexican side of the border has nevertheless “arrive[d] in the United States” and thereby become eligible to apply for asylum.

But most of the relist action was on the negative side of the ledger. The court denied review in four-time relist Hutson v. United States, which presented a question about officials’ ability to seek relief under a federal statute allowing federal courts to revisit orders granting prisoners prospective (that is, future-oriented) relief regarding detention facilities. In doing so, the court turned down an appeal from the New Orleans sheriff, Susan Hutson, in a dispute over the city’s obligation to build a new facility for inmates with mental health issues. Justice Neil Gorsuch indicated, without explanation, that he would have granted her petition for review. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented from the denial of Hutson’s petition, saying that the lower courts should have required the challengers, not the sheriff, to show that the order requiring the new facility to be built was still needed.

The petitioner in one-time relist Bartunek v. United States wasn’t even that lucky: the court denied his petition concerning the constitutionality of acquitted-conduct sentencing (that is, judges taking into account one’s acquitted conduct when imposing sentencing) without comment.

Ditto for the petitioner in four-time relist Little v. United States, a January 6 defendant seeking to have charges dismissed in light of President Donald Trump’s pardon of such offenders. But that was understandable: the lawyer for defendant James Little had informed the Supreme Court that the district court had dismissed the case after the government filed a motion to do so.

Now on to the new business. There are 200 cases on the docket for this Friday’s conference. We have four new cases that didn’t take the hint to leave after last week’s conference.

Pipeline pay

In Hoffmann v. WBI Energy Transmission, Inc., the court is asked to referee a disagreement over how to determine the value of “just compensation” when a private natural-gas pipeline uses the Natural Gas Act’s federal eminent-domain power to take property to construct a pipeline. The Hoffmann family settled with the pipeline company to resolve the principal amount necessary to compensate them for easements across their North Dakota ranch, but they claimed that “just compensation” should include the payment of their attorney’s fees – because North Dakota law treats such expenses as necessary to make landowners whole. The U.S. Court of Appeals for the 8th Circuit said “no dice,” holding that when Congress delegated to pipelines the “right of eminent domain,” it incorporated the federal definition of “just compensation,” which excludes attorney’s fees unless Congress expressly provides for them. As the 8th Circuit acknowledged, four other circuits interpreting either the NGA or its cousin, the Federal Power Act, have gone the other way and held that state compensation rules – including fee entitlements – fill the statutory silence. The family argues that’s a classic, mature circuit split that’s ready for Supreme Court resolution; the pipeline company says those older cases predate the Supreme Court’s 2021 decision in PennEast Pipeline Co. v. New Jersey and the claimed split will resolve itself once lower courts absorb PennEast’s reminder that NGA condemnations are an exercise of federal power and state law should thus not be applied here.

Hoffman arrives with unusually broad support from the states themselves, which are typically adverse to property owners’ just compensation claims. Twelve states have filed a “friend of the court” brief, arguing that courts should determine just compensation by incorporating state law. Otherwise, landowners would get one level of compensation if the condemnor proceeds under state law and a lower one if the condemnor invokes the NGA in federal court, even for the same project on the same parcel. The family claims its reading follows as a straightforward application of the presumption under the 1979 case of United States v. Kimbell Foods, Inc. that federal courts borrow state law absent a strong need for uniformity.

Pandemic preemption

John Doe is an HIV-positive chronic-pain patient who was referred for aquatic physical therapy at Dynamic Physical Therapy, LLC, only to be told the day before his first pool session that the clinic wouldn’t allow him in the water because of his HIV status – though the clinic told Doe he was welcome to come in for land-based PT instead. Doe declined, then sued in Louisiana state court for disability discrimination and infliction of emotional distress under the state disability statute, Title III of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act (which require public accomodations receiving federal funding to give reasonable accommodation to those with disabilities and not discriminate against them).

The clinic invoked Louisiana’s Health Emergency Powers Act, which, during declared public health emergencies (such as the COVID-19 pandemic), immunizes health-care providers from civil liability unless there is proof of “gross negligence or willful misconduct.” The trial court found Doe to have failed to state a cause of action because he had not adequately alleged gross negligence or willful misconduct. The state court of appeals affirmed, and the Supreme Court of Louisiana denied review, over the opposition of three justices.

In Doe v. Dynamic Physical Therapy, LLC, Doe argues that LHEPA is preempted by the ADA and Rehabilitation Act, arguing that states can’t use such immunity rules to nullify federal civil-rights remedies by smuggling in a heightened “gross negligence” standard. The clinic, for its part, says that emotional distress damages are unavailable under the Rehabilitation Act, and every circuit to consider it holds that injunctive relief (not money damages) is the only private remedy under Title III of the ADA; because Doe never sought injunctive relief, they argue that Doe would have lost in any other court. Doe has yet to file a reply, so the justices won’t have the advantage of knowing his responses to Dynamic Physical Therapy’s arguments. That doesn’t bode well for him.

Professors’ parity

In Crowther v. Board of Regents of the University System of Georgia, the court is asked whether Title IX of the Education Amendments of 1972 lets employees of federally funded schools sue for sex discrimination in employment, or whether Congress meant for such claims to proceed under Title VII of the Civil Rights Act of 1964.

In this case, former Georgia Tech women’s basketball coach MaChelle Joseph says she was shortchanged on resources compared to the men’s program and then fired after complaining about that and being treated differently as a female coach. Art professor Thomas Crowther says Augusta University (also a state school) railroaded him in a biased investigation for sexual harassment and then declined to renew his contract. Joseph and Crowther separately brought employment discrimination claims under Title IX along with claims under Title VII; the district court tossed Joseph’s Title IX claim as precluded by Title VII, but another district court let Crowther’s proceed, certifying an interlocutory – that is, before there was a final judgment in the case – appeal.

The U.S. Court of Appeals for the 11th Circuit consolidated the cases and held that employees do not have an implied private right of action (that is, the ability to sue as a private party) for sex-discrimination employment claims under Title IX. The court reasoned that statutes enacted (like Title IX was) under the Constitution’s spending clause presumptively rely on administrative fund cutoffs to enforce antidiscrimination provisions rather than private lawsuits, and that at the time of Title IX’s enactment, Congress had already built a scheme under Title VII for employment discrimination. The 11th Circuit acknowledged that in the 1979 case of Cannon v. University of Chicago, the Supreme Court had recognized that students have an implied private right of action under Title IX, but the court of appeals distinguished this from employees, who already had a right of action under Title VII before Title IX was ever enacted.

Crowther and Joseph say the 11th Circuit disregarded decades of lower-court consensus, arguing that eight circuits permit employee suits under Title IX, while only the U.S. Courts of Appeals for the 5th, 7th, and now 11th Circuits go the other way. The universities counter that the “split” is padded with cases that simply assumed there was a right of action, and insist that Title VII’s exclusive, exhaustion-heavy scheme precludes back-door employment claims under Title IX. Crowther and Joseph in reply fire back that the circuit split is entrenched and that the 11th Circuit’s rule leaves employee discrimination victims worse off for having chosen a federally funded employer.

This is an interesting case, but implied rights of action are so disfavored you would expect the court to wait until a lower court had allowed a university employee to actually succeed in recovering money before granting review.

A prisoner’s plea

Last up is Allen v. Guzman – the most recent of the “lost cause” phenomenon that has arisen for the first time in the 2025-26 term: relisted cases (most of them filed by self-represented prisoners) in which the Supreme Court has not called for a response, indicating it is unlikely to grant review.

Here, a self-represented California prisoner asks the Supreme Court to recognize a federally protected liberty interest in enforcement of a new state statute. After California enacted its Racial Justice Act, codified in part at California Penal Code § 1473(e), Allen filed a state petition arguing that racial disparities in Los Angeles County’s charging and sentencing practices are so great that they must reflect racial discrimination. The key hook is a single sentence in Section 1473(e): “The petitioner shall state if the petitioner request[s] appointment of counsel and the court shall appoint counsel if the petitioner cannot afford counsel.”

Allen asked for a lawyer, but he claims that the state courts denied counsel and then denied his Racial Justice Act petition. He then went to federal court to seek post-conviction relief, arguing that the statute’s mandatory “shall appoint counsel” language created a state-law liberty interest protected by the 14th Amendment – and that by refusing to appoint counsel and summarily denying his claim, California violated his right to due process. The district court treated his filing as a second-or-successive habeas petition under the Antiterrorism and Effective Death Penalty Act and tossed it for failure to meet the exacting standards for such petitions. The U.S. Court of Appeals for the 9th Circuit summarily affirmed in an unpublished disposition, and Allen now seeks review.

Allen’s odds are looking longer than the traffic backup on the 405 before a three-day weekend. But kudos for him for catching at least one justice’s eye.

New Relists

Hoffman v. WBI Energy Transmission, Inc., 25-159

Issue: Whether in private condemnations under the Natural Gas Act, just compensation should be determined by reference to state law.

(Relisted after the Nov. 14 conference.)

Doe v. Dynamic Physical Therapy, LLC, 25-180

Issue: Whether a state procedural law that immunizes a healthcare provider from liability during a public health emergency may override a federal substantive claim based on the Americans with Disability Act and the Rehabilitation Act of 1973, effectively denying the corresponding remedy authorized by these federal statutes by forcing plaintiffs to meet a heightened standard to prove federal claims than provided for in the federal statutes. (Relisted after the Nov. 14 conference.)

Crowther v. Board of Regents of the University System of Georgia, 25-183

Issue: Whether Title IX provides employees of federally funded educational institutions a private right of action to sue for sex discrimination in employment.

(Relisted after the Nov. 14 conference.)

Allen v. Guzman, 25-5879

Issues: Whether petitioner has a state-created liberty in the appointment of counsel under the newly enacted California Racial Justice Act Penal Gode Section 1473(e), which provides that “the court shall appoint counsel if the petitioner cannot afford counsel.”

(Relisted after the Nov. 14 conference.)

Returning Relists

Does 1-2 v. Hochul, 24-1015

Issues: (1) Whether compliance with state laws directly contrary to Title VII of the Civil Rights Act of 1964’s requirement to provide a reasonable accommodation for religious beliefs may serve as an undue hardship justifying an employer’s noncompliance with Title VII; and (2) whether a state law that requires employers to deny without any consideration all requests by employees for a religious accommodation, contrary to Title VII’s religious nondiscrimination provision, is preempted by Title VII and the Supremacy Clause of the Constitution.