Relist (and hold) watch

By John Elwood
on May 17, 2012 at 10:55 am

John Elwood reviews Monday’s relisted and held cases.

Monday was a big day. Facebook raised the price range of its IPO to $34-38 a share, up from $28-35; in a related story, CEO Mark Zuckerberg announced that he was buying Greece, Spain and Portugal with change he found under his sofa cushions, thus resolving the Euro Zone crisis; and, in somewhat less momentous news, the Supreme Court loosed a slew of new relists.

The biggest category of newish relists involves a group of people that is not altogether pleased to be present in this jurisdiction: Guantanamo detainees challenging their detention. The Court has shifted five detainee cases over to the May 17 Conference: Al-Bihani v. Obama, 10-1383; Almerfedi v. Obama, 11-683; Uthman v. Obama, 11-413; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700. Readers with particularly debilitating OCD and too much time on their hands will recall that in January, the Court held Al-Bihani and Uthman, apparently waiting for the other three cases to catch up. This relist may represent more of the same. It’s complete speculation, of course – I hope you’d know better than to expect more of me – but perhaps the Court chucked them over to the next Conference so it could consider them alongside Latif v. Obama, 11-1027, a case that is already on for Conference on May 17. In Latif, a D.C. Circuit majority, in a scant fifty-three pages, held that the district court had erred in granting Latif habeas relief, concluding that a presumption of regularity attends official acts (including statements in an intelligence report), and the district court should have viewed the “totality” of the evidence rather than considering it in an “atomized” way; Judge Tatel filed a similarly abbreviated forty-five-page dissent. Benjamin Wittes believes that “Latif offers the detainee bar its best opportunity yet to get the D.C. Circuit’s post-Boumediene[] work in front of the [J]ustices,” and Lyle likewise says the case “may be their best chance.” A common issue among detainee cases is the legal test for reviewing determinations whether a detainee was part of al Qaeda, which at least implicitly implicates Latif. Al Kandari v. Obama, 11-1054, is also on for the May 17 Conference, and appears to involve whether the district court may rely on hearsay evidence like intelligence reports in adjudicating a habeas petition. There are still other cases in the pipeline, too, but Latif and perhaps Al Kandari look like the likeliest explanation for the relists at the moment.

There were also two non-Gitmo relists. Granted, I am emotionally stunted and my priorities are all wrong, but they strike me as unusually interesting and important. Comcast Corporation v. Behrend, 11-864, which is a follow-on to Wal-Mart v. Dukes, will be relisted; it presents the question whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3). The case, which involves a class of more than two million current and former Comcast subscribers, seeks further clarity on exactly how much the district court should delve into the merits. Wal-Mart’s statement that district courts must undertake “a rigorous analysis[] that the prerequisites of Rule 23(a) have been satisfied,” and that that analysis “[f]requently . . . will entail some overlap with the merits of the plaintiff’s underlying claim,” was one of the most significant (and to the defense bar, tantalizing) aspects of that opinion.

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments. The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” – and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case. (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” – the four Almendarez-Torres dissenters plus himself – “now recognizes that Almendarez-Torres was wrongly decided.”) I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres – despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here. As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement. But Staunton did not receive that protection. Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response a response. The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.

Three of the relists from our last installment are back again this week: First, Coleman, Superintendent v. Johnson, 11-1053, a state-on-top habeas case out of the Third Circuit in which the state basically alleges that the federal courts failed to credit evidence favorable to the prosecution and to apply the presumption of correctness required by 28 U.S.C. § 2254(e)(1). The Court has requested the record, so clearly, it’s getting serious. Second, Parker, Warden v. Matthews, 11-845, another state-on-top habeas case, this time out of the Sixth Circuit, in which Kentucky argues that the Sixth Circuit failed to give sufficient deference to Kentucky state courts’ interpretation of Kentucky law. The case has been scheduled for three Conferences since the Court called for and received the record, so it seems likely that some sort of opinion – either a summary reversal or a dissent from the denial of cert. – is being drafted right now. And third is Fairey v. Tucker, Secretary, 11-7185, yet another habeas case involving a collateral attack on the circumstances of the petitioner’s trial and the South Carolina district court’s conclusion that it lacks in personam jurisdiction over the Secretary of Florida’s Department of Corrections; the Court called for the record on April 16, but it still hasn’t arrived. One relist did not make it back this week: the Court denied without comment in Adams v. Tyson Foods, Inc., 11-9054, involving a petitioner who claims to be a Tyson Foods whistleblower claiming a host of constitutional violations relating to his alleged presence on a terrorist watch list.

One lonely new hold: Coleman v. United States, 11-9604, which almost certainly involves our favorite hold fodder, Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721.

That’s all for this week. The Court will be back next week with more. See you next time.

Thanks to Conor McEvily for compiling the cases discussed in this update.

Comcast v. Behrend (relisted after the 5/10 Conference)

Docket: 11-864

Issue(s): Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).