Relist and Hold Watch: June wrap-up

By John Elwood
on Jun 29, 2011 at 8:34 am

On Monday, three of the Court’s eleven grants came in relisted cases.  Knox v. Service Employees International Union Local 1000, 10-1121 (relisted twice), involves First Amendment challenges to a labor union’s special assessment to fund political activity.  Martel v. Clair, 10-1265 (relisted once), seeks review of a Ninth Circuit decision holding that a district court abused its discretion in denying the writ where a federal habeas petitioner had objected to the performance of his appointed federal habeas counsel and demanded substitute counsel.  The third grant is slightly more unusual:  Messerschmidt v. Millender, 10-704, which seeks review of the Ninth Circuit’s denial of qualified immunity to police officers who executed a search based on an invalid warrant, had been relisted a whopping seven times before Monday’s grant (six times since the Court called for a response to the petition).  It seems likely that one of the Justices circulated a dissent from denial of cert. that was sufficiently persuasive to garner the necessary fourth vote for a grant.

Tuesday, the Court granted cert. in Sackett v. EPA, 10-1062 (relisted once), involving pre-enforcement review of administrative compliance orders, and in Williams v. Illinois, 10-8505, which previously had been held for Bullcoming v. New Mexico, 09-10876.  Williams presents a question not addressed in Bullcoming:  whether an expert witness may rely on the results of DNA analysis conducted by non-testifying persons in explaining the basis for the testifying expert’s own independent opinion.  It appears the Court is now holding Greineder v. Massachusetts, 10-8835, Turner v. United States, 09-10231, and Mitchell v. Maine, 10-7405—each previously held for Bullcoming—for Williams.

Tuesday, the Court GVR’ed in Beer v. United States, 09-1395—which the Court relisted nine times and had been holding for Wal-Mart since December—and remanded for the Federal Circuit to “consider [in the first instance] the question of preclusion raised [in the Acting SG’s brief].”  The Acting SG argued in his brief that issue preclusion was an independent basis to dismiss the complaint in Beer, on the ground that the Beer plaintiffs were unnamed members of the class in Williams v. United States, 240 F.3d 1019 (Fed. Cir. 2001), which rejected the same Compensation Clause argument.  The Beer petition argued that the Williams class had been improperly certified under Federal Rule of Civil Procedure 23(b)(2) because the suit was predominantly for money damages, and that dismissal of their suit on preclusion grounds would violate due process.  The Acting SG responded that a class member cannot avoid the preclusive effect of a past judgment by collaterally challenging class certification, that in any event Rule 23(b)(2) allows certification so long as claims for injunctive or declaratory relief predominate over claims for money damages, and that there was no due process violation because the petitioners had notice of the Williams class and did not seek to opt out.  Having rejected the SG’s “predominance” argument in Wal-Mart, the Court explained in GVR’ing Beer that it “considers it important that there be a decision on the [preclusion] question, rather than that an answer be deemed unnecessary in light of prior precedent on the merits.”

As anticipated, the Court also GVR’ed Tuesday in several petitions set forth in Monday’s post, in light of recently released decisions in Freeman v. United States, 09-10245, Bullcoming v. New Mexico, 09-10876, and J. McIntyre Machinery, Ltd. v. Nicastro, 09-1343.

Of the petitions not disposed of in Monday and Tuesday’s orders, Allen v. United States, 10-999, which involves application of the good faith exception to the Fourth Amendment’s exclusionary rule for a search executed pursuant to a facially invalid warrant, might be a hold for Messerschmidt.  Although Messerschmidt arises in a qualified immunity framework, the Ninth Circuit in that case found the search warrant “plainly invalid,” so the Court might address the scope of the good-faith exception to the exclusionary rule in a way that affects the disposition in Allen.  As previously suggested, the Court appears to be holding Pineda-Moreno v. United States, 10-7515, for United States v. Jones, 10-1259 (granted Monday); both cases present a Fourth Amendment challenge to warrantless GPS surveillance of automobiles.

One head-scratching holdover is Cavazos v. Smith, 10-1115, which the Court apparently did not dispose of Monday despite having relisted seven times this Term.  In Cavazos, California again seeks review of the Ninth Circuit’s grant of habeas relief under Jackson v. Virginia, 443 U.S. 307 (1979), following the Court’s two prior GVRs in this very case. It’s conceivable the Court decided to hold Cavazos for one of next Term’s cases that will apply AEDPA’s deferential standard of review (such as Howes v. Fields, 10-680, which involves a Miranda claim).  But it also seems possible that a summary reversal is forthcoming (perhaps with dissents), either over the summer or after September’s long conference.

The Court denied cert. in a number of petitions discussed in last week’s and Monday’s posts.  ­Ochoa v. Holder, 10-920, and Gor v. Holder, 10-940 (both relisted once), involved whether the courts of appeals have jurisdiction to review denials by the Board of Immigration Appeals of motions to reopen removal proceedings sua sponte.  Vogt v. North Carolina, 10-8800 (relisted once), presented an ex post facto challenge to a North Carolina sex offender monitoring law.  Russell v. California, 10-10201 (relisted twice), challenged the exclusion of mitigating evidence from the penalty phase of a capital trial.  Abbyy Productions, LLC v. Nuance Communications, Inc., 10-1019 (relisted once), involved service of process under a U.S.-Russia treaty and due process limits on the exercise of personal jurisdiction over a Russian software developer.  The Court denied cert. in three cases discussed at length in previous posts:   Zuress v. Donley, 10-374 (relisted four times), Wetherill v. McHugh, 10-638 (thrice), and Witt v. United States, 10-885 (twice).  Zuress and Weatherill presented the question whether “dual-status technicians” who perform civilian roles within military departments may sue the government for employment discrimination under Title VII; Witt relatedly asked the Court to overrule Feres v. United States, 340 U.S. 135 (1950). [Disclosure:  Goldstein, Howe & Russell, the sponsor of this blog, served as counsel to the petitioner in Zuress.]  The Court also denied cert. without comment in Philip Morris USA Inc. v. Jackson, 10-735, which was released from a long Wal-Mart hold last week.  Finally, as suggested in prior tea leaf reading, the Court vacated the judgment of the Ninth Circuit in United States v. Juvenile Male, 09-940, in light of mootness (and without mentioning United States v. Munsingwear, Inc., 340 U.S. 36 (1950)).

I’ll be back in a day or two with a round-up of the petitions being held for OT2011’s cases.  And thanks again to summer associate, Kiran Bhat, for preparing this update.