Relist (and Hold) watch

JOHN ELWOOD

DEC 1, 2011 10:04 AM

John Elwood reviews Monday’s relisted and held cases.

Welcome back! If you are facing a fridge full of leftovers, we have the legal equivalent for you today—a heaping helping of cases that are hanging around at One First Street N.E. a little longer than usual. But these are definitely aging better than the yam casserole on my bottom shelf.

I’ll ditch that unappetizing metaphor before addressing the relists that didn’t make it. Monday brought bad news for the petitioner in the once-relisted Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which asked whether victims seeking to enforce their rights under the Crime Victims’ Rights Act are entitled to ordinary appellate review (as opposed to mandamus review). The Court denied cert. without comment in that case (and its never-relisted companion, Amy v. Monzel, 11-85). It did the same in Dallas v. L.J., 11-109, a one-time relist in which Maryland sought relief from a twenty-two-year-old consent decree that governs substantial aspects of the state’s foster care system.

In happier news, as we noted last time, the Court confronted a choice about which vehicle to use to address a split over the retroactive application of the Fair Sentencing Act, which reduced the crack-powder cocaine sentence differential. The Court evidently found something to like in both the main contenders, because it granted cert. in Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, and consolidated them for argument. Those grants put a whole slew of cases in the hold column: Davis v. United States, 11-5323; Robinson v. United States, 11-5842; Hyde v. United States, 11-6364; Lewis v. United States, 11-6464; Hernandez v. United States, 11-6602; Cox v. United States, 11-6716; Merriman v. United States, 11-6847; and Griffin v. United States, 11-6876. You can bet there will be many more holds to come.

It looks like we have three new certifiable relists. First up is RadLAX Gateway Hotel v. Amalgamated Bank, 11-166. RadLAX asks whether a Chapter 11 bankruptcy debtor can sell assets free of liens without allowing a secured creditor to bid so long as the debtor provides an equivalent to the creditor’s claim. For the second relist, we follow Sherman McCoy over the Alexander Hamilton Bridge to The Bronx Household of Faith v. New York City Board of Education, 11-386. That case involves petitioner’s suit challenging the New York City Board of Education’s policy of not allowing religious groups to use its facilities for worship, although it allows the facilities to be used by other groups for “social, civic and recreational meetings and entertainments” and similar uses. Four amici were involved at the cert stage—including former Judge Michael McConnell for the Becket Fund and another Supreme Court practitioner with an equal number of consecutive double letters in his name, Baker Botts’s Aaron Streett. The last “new” relist was technically relisted before, because the Court called for a response right before the Long Conference: Beauchamp v. Wisconsin, 11-148. As Confrontation Clause mavens already know, Beauchamp raises the question whether the Sixth Amendment prohibits the admission of unconfronted testimonial dying declarations.

Then, of course, there are the long-running repeat relists, all of them state-on-top habeas cases alleging that courts of appeals gave insufficient deference to state-court decisions: Hardy v. Cross, 11-74 (relisted seven times); Cash v. Maxwell, 10-1548 (relisted six times); and Wetzel v. Lambert, 11-38 (relisted five times). We really should be seeing opinions of some sort in those cases soon.

Monday’s order list also delivered up a bunch of other holds, too. First up is an unusual one. The Court rarely grants petitions for rehearing, but it is holding (at least for the moment) the rehearing petition in Addison v. New Hampshire, 10-8527, apparently for Perry v. New Hampshire, 10-8974, which was argued on November 2. Both cases involve the reliability of eyewitness statements to the police. Next up is a trio of BIA cases involving whether aliens can avoid deportation if, as minors, they lived with a parent who had been in the country for at least seven years and had been a lawful permanent resident for at least five years: Holder v. Mojica, 11-99; Holder v. Camacho, 11-103; and Holder v. Becerra, 11-104. The three are being held for the decision in the consolidated cases Holder v. Gutierrez, 10-1542, and Holder v. Sawyers, 10-1543, to be argued on January 18, 2012. Another immigration case, Umer v. Holder, 11-144, appears to be on hold for Judulang v. Holder, 10-694, which was argued back on October 12, and which raises the question whether a lawful permanent resident convicted of a crime can seek a waiver of excludability to prevent deportation. Johnson v. California, 10-10923, is likely being held for Williams v. Illinois, 10-8505, on for argument December 6. Both cases involve whether expert DNA testimony offered to explain the basis of the expert’s independent opinions violates the Confrontation Clause. Dawes v. United States, 11-217, is likely being held for Hall v. United States, 10-875 (argued Tuesday), which raises the question whether capital gains income tax incurred due to the sale of the petitioners’ family farm is not an administrative expense owed by the bankruptcy estate and payable under a bankruptcy reorganization plan. Virginia v. Sebelius, 11-420, looks like it is being held for the knot of cases involving health-care challenges. Finally, Childers v. Floyd, 11-42, is a habeas case raising issues involving the Confrontation Clause and whether a claim has been “adjudicated on the merits” for habeas-bar purposes. The Court is likely holding it either for Cavazos v. Williams, 11-465 (a pending petition raising a similar “adjudicated on the merits” question) or Williams v. Illinois.

O’Rourke v. Palisades Acquisition, XVI, 11-179, a case concerning the breadth of the Fair Debt Collection Practices Act, is likely being held for Fein, Such, Kahn and Shepard, PC v. Allen, 10-1417, in which the Court called for the views of the Solicitor General and is awaiting his brief. Similarly, Tibbals v. Carter, 11-218, a capital habeas case involving whether there is a “right to competence,” is almost certainly being held for the Solicitor General’s invited brief in Ryan v. Gonzalez, 10-930. Back on the civil side, we have Arctic Slope Native Assoc. v. Sebelius, 11-83. No, it’s not another health care challenge: Arctic Slope concerns a Native American contractor stiffed by a government agency because it did not have enough money left in its annual appropriation to pay. Per the Solicitor General’s recommendation, the case is likely being held for Salazar v. Ramah Navajo Chapter, 11-551, a pending government petition that raises a similar question.

If you’re feeling a bit drowsy and sluggish, no, that’s not L-tryptophan from too much turkey working its way through your system. It’s good old-fashioned boredom from gazing too long into the abyss of the Court’s docket. Go for a walk or something.

As I’ve said so many times that I think the Tappet Brothers are going to use it when they go to station identification, if a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But if it’s been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Thanks to Eric White for compiling and drafting this update.

RadLAX Gateway Hotel v. Amalgamated Bank (relisted after the 11/22 Conference)

Docket: 11-166

Issue: Whether a debtor may pursue a Chapter 11 plan that proposes to sell assets free of liens without allowing the secured creditor to credit bid, but instead providing it with the indubitable equivalent of its claim under Section 1129(b)(2)(A)(iii) of the Bankruptcy Code.