The Relist Watch Before Christmas (UPDATED)

By John Elwood
on Dec 12, 2018 at 10:43 am

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 a head, 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.