Relist (and Hold) watch

By John Elwood
on Oct 20, 2011 at 9:18 pm

John Elwood reviews Monday’s relisted and held cases.

I mentioned at the end of last week’s relist (and hold) watch that my next post would likely be delayed because of a (still ongoing) trial in Madison, Wisconsin. Turns out I’m not the only one doing things a little slow, as the powers that be over at One First Street are taking their time updating the docket. They’re likely in no hurry because the Court won’t be holding its next Conference until October 28.

In any event, in keeping with the recent trend, most of last week’s relists appear to be back for another relist this week. And surely it is time for an opinion of some sort in Cavazos v. Smith, 10-1115, the state petition in the habeas case out of the Ninth Circuit that has now been relisted eleven times. There are a few notable exceptions. All the talk on cable news may be about “9-9-9,” but in the nerdosphere, it’s all “2-2-2”—the 222-year-old Alien Tort Statute, that is. (Pause for laughter that will never come.) After two relists, the third time at Conference proved to be the charm for Kiobel v. Royal Dutch Petroleum, 10-1491, in which the Court will consider whether an alien claimant can sue a U.S. corporation under the Statute, and for the related case Mohamad v. Rajoub, 10-88, involving the Torture Victim Protection Act of 1991. More from Kevin Russell about those grants here. We assume (but do not know) that Bowoto v. Chevron Corp., 10-1536 (also on its second relist) is now being held for Kiobel. Also good news for the petitioner in Elgin v. Department of Treasury, 11-45, which was relisted after the October 7 Conference. More on that grant can be found here.

The gavel came down on three petitions out of the Fifth Circuit—Pachecho-Garcia v. United States, 10-9445 (three relists); Guerrero-Campos v. United States, 10-9746 (ditto); and Wesevich v. United States, 10-10340 (two relists) – all of which raised third-prong plain error sentencing issues. And we will have to wait a while longer to know definitively whether the U.S. District Court for the Northern Mariana Islands has jurisdiction to hear criminal cases arising under the laws of the United States even though its judges do not enjoy Article III protections, because the Court denied cert. in the twice-relisted Sun v. United States, 10-9333. And despite the presence of virtually every predictor of a grant in the case (SG petition, Seth Waxman petition, and a couple of amicus briefs), the Court turned down United States v. New York, 10-1404, and Oneida Indian Nation of New York v. County of Oneida, New York, 10-1420, which concerned claims of land transactions in New York State between 1795 and 1846 that violated the Nonintercourse Act; Justices Ginsburg and Sotomayor summarily noted that they would have granted the petitions.

At long last, there appears to be only one new relist to report (and a slightly unusual one at that), along with two holds. Not exactly the poster children of geographic diversity, two of these cases are out of the Fifth Circuit and one is from Texas state court. Our sole relist is Medina v. Texas, 10-10838, a capital case in which the Texas Court of Criminal Appeals issued a forty-page unpublished opinion affirming the trial court’s judgment on direct appeal. Medina’s petition raises a litany of constitutional violations. In it, he argues that he was deprived of his rights to due process, a meaningful opportunity to be heard, a fair opportunity to present a defense, a fundamentally fair trial, right to counsel, and right to a reliable and individualized capital sentencing in violation of the Sixth, Eighth, and Fourteenth Amendments. One of the main issues is the prejudice caused to Medina, who was charged with killing his two children, by a number of court-ordered delays because of jury conflicts (including, supposedly, induced labor and fishing (!) during the punishment phase of his trial). Medina argues that those delays, coupled with other errors, ultimately prevented a number of witnesses from Medina’s native El Salvador from testifying on his behalf. The relist is slightly unusual because the Court scheduled Medina for the November 4 (rather than October 28) Conference, perhaps because the record (which the Court requested back on October 6) arrived at One First Street the same day the petition was on for the October 14 Conference.

Cotroneo v. Shaw Environmental, 11-71, is almost certainly being held for the Solicitor General’s brief in Cook v. Rockwell International, 10-1377, which presents a nearly identical issue. (The Court CVSG’ed in Cook after the Long Conference.) Cotroneo is a curious case out of the Fifth Circuit in which Judge James L. Dennis authored the panel’s opinion and then went on to file a separate solo opinion concurring in part with, and dissenting in part from, the majority (read: his) opinion. At any rate, Cotroneo involves the interrelation of Texas state law and the federal Price-Anderson Act, 42 U.S.C. § 1011 et seq., with regard to plaintiffs bringing tort claims for exposure to radioactivity. The Fifth Circuit concluded that the plaintiffs’ state-law claims were preempted by the Price-Anderson Act, and a majority of the court found that the plaintiffs failed to satisfy the Act’s requirements. Seizing on some of the language in Judge Dennis’s dissent from his own majority opinion, petitioners argue that the Fifth Circuit botched its interpretation of the Act.

Finally, if you’re a tax junkie or just a fan of George Harrison circa 1966, get ready to be excited. The Court appears to be holding United States v. Burks, 11-178, which asks whether an understatement of gross income attributable to an overstatement of basis in sold property is an “omi[ssion] from gross income” that can trigger the extended six-year assessment period; it also asks whether a final regulation promulgated by the Department of the Treasury (which answers that first question “yes,” if there was ever any doubt) is entitled to judicial deference. The case appears (to my bleary eyes) to raise the same question as United States v. Home Concrete & Supply, LLC, 11-139, which the Court granted off the summer list. This must be a fairly common tax issue, because the Court has also been holding the nearly-identical Beard v. Commissioner of Internal Revenue, 10-1553, since the Long Conference.

At the risk of blogging Mission Creep, the Court has also called for the record in KPMG v. Cocchi, 10-1521, which was initially distributed for the September 26 Conference after the respondents waived their right to respond (and then was sorta kinda relisted because the Court called for a response in August). Call the CFRecord after last week’s Conference an “anticipatory relist” since it means the case will be considered at a future conference, and obviously with both a CFR and a CFRecord, somebody’s Spider Senses are tingling on this one. KPMG arises out of the Bernie Madoff scandal, and concerns whether an arbitration agreement between a fund auditor and its funds applies to individuals who invest in the funds and bring a claim against the auditor.

That’s all for now. Mercifully for all of us, we have a week off now. Stay tuned for the next relist watch the first week in November. Until then, Happy Halloween!

Thanks to Eric White for compiling and drafting this update.

Medina v. Texas (relisted after the 10/14 Conference for the 11/4 Conference)

Docket: 10-10838

Issue(s): Whether the trial court deprived petitioner of his (1) Fourteenth Amendment rights to due process, a meaningful opportunity to be heard, a fair opportunity to present a defense, and a fundamentally fair trial; (2) Sixth and Fourteenth Amendment right to counsel; and (3) Eighth and Fourteenth Amendment right to a reliable and individualized capital sentencing proceeding.