Relist (and Hold) Watch

JOHN ELWOOD

OCT 3, 2012 1:06 PM

John Elwood reviews Monday’s relisted and held cases.

For the past few months, talking heads have conjured up an image of the Justices returning to work harboring the sort of personal animosity not seen since Triple H took down the Undertaker at WrestleMania XXVIII’s “Hell in a Cell” match. Oh sure, the Justices themselves have disputed those accounts at every opportunity, but what do they know? In any event, nothing appears to have stopped the Justices from sorting through the two thousand(!) petitions that accumulated while they were off cavorting around Europe preparing for another year of dedicated public service. And that’s good enough for me.

For those of you who are new to the Relist (and Hold) Watch, here’s a primer: When the Court releases its orders, with their handful of grants and hundreds of denials, some cases are left behind. Sometimes those cases are not disposed of because they have been scheduled to be considered at another Conference (usually the very next one), which is usually a sign that the Court is taking a closer look at the case – those are the relists. And sometimes they are merely being held for another case or another event, and so will not show up on the discussion list at the next Conference – those are the holds. This feature strives to identify those cases. The customized Magic 8 Ball I keep hidden in my office can identify the two with moderate success, beating the control chimpanzee in two out of five industry trials. So let’s get to it!

Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists. Eleven, in fact. Apprendi purists, ready the confetti: Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002). You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury. Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter). It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris. But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.

Speaking of dashed dreams, the petitioner in Bowman v. Monsanto Co., 11-796, just wanted what any red-blooded American farmer wants: to apply “a glyphosate-based herbicide to his second-crop” genetically modified soybeans and then save some of the harvested seeds for planting. But the patent owner on the genetically modified soybeans (Monsanto) argued, and the Federal Circuit agreed, that a farmer who creates a new generation of genetically modified soybeans without permission infringes the patent. In his petition, Bowman asks the Court to repudiate the Federal Circuit’s recognition of an exception to the doctrine of patent exhaustion for self-replicating technologies. Back in April the Court called for the views of the Solicitor General, who filed a brief recommending the Court deny cert. The Court apparently needs a little more time to decide whether to follow the SG’s recommendation, or whether Bowman should join the ranks of the cases on the docket that were granted over the SG’s recommendation to deny (Ryan v. Gonzales, 10-930; Decker v. Northwest Environmental Defense Center, 11-338; Los Angeles County Flood Control District v. NRDC, 11-460; and Vance v. Ball State University, 11-556).

Lawson v. FMR LLC, 12-3, concerns Section 806 of the scourge of Greenwich, Connecticut, a.k.a. the Sarbanes-Oxley Act. The petition asks whether employees of contractors and subcontractors of a publicly traded company are protected from retaliation. The First Circuit took a narrow interpretation that is at odds with the administrative interpretation. Meanwhile, coming out of the Second Circuit next door, Chevron v. Naranjo, 11-1428, concerns the scope of the Declaratory Judgment Act; specifically, the petitioner is seeking an affirmative answer to the question whether the Act allows a party to assert an anticipatory defense to a suit even when the underlying substantive statute does not authorize declaratory relief.

When not ordering ballot recounts or contemplating the legal implications of dog sniffs, the Florida Supreme Court bides its time deciding land-use disputes. The petitioner in Koontz v. St. Johns River Water Management District, 11-1447, claims the government land use agency denied his development permits for his wetlands property because he would not agree to its demand that he improve government-owned property far from the area he wishes to develop, in violation of the Fifth Amendment’s Takings Clause. Koontz won at the trial and intermediate appellate level only to be smacked down by the Florida Supremes.

Back over on the criminal side, we have something of an anomaly: two criminal defendants (i.e., not the state) appealing Ninth Circuit decisions. The petitioner in Della Porta v. United States, 11-9771, who was convicted of embezzlement, presents an interesting question concerning an unusual scenario: Whether a district court can have the parties present supplemental closing arguments in response to a jury’s declaration of deadlock. The petitioner in Mascorro v. United States, 11-10204, who was convicted of transporting undocumented aliens, asks the Court to reverse his conviction because the district court instructed the grand jury that they were to indict if they found probable cause and thus prevented it from being able to exercise its discretion not to indict.

Louisiana has a reputation for colorful personalities – and if critics are to be believed, a colorful system of justice. The petitioner in Boyer v. Louisiana, 11-9953, casts further aspersions on the Pelican State’s criminal justice system. Boyer laments the Louisiana appellate court’s “categorical ban” on experts testifying regarding the “psychology of interrogations” and false confessions, and argues his right to a speedy trial was violated because the state’s stinginess in funding indigent defense caused five years of delay waiting for counsel to be appointed. Next up is In re Ted Herring, 11-1307. The petitioner, a capital defendant, seeks a writ of mandamus compelling the Eleventh Circuit to certify his successive habeas petition. Herring alleges that that court, “as well as a minority of other circuits,” abused its discretion by improperly importing the “reasonable likelihood” requirement in 28 U.S.C. § 2244(b)(2) in addition to the new-rule-of-constitutional law requirement in Section 2244(b)(2)(A), which he says he satisfies because this is the first time he is seeking to raise an Atkins v. Virginia (2002) mental-retardation claim.

Diaz v. Wyoming, 11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States, 11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel. (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.) It is not immediately apparent to us how Diaz differs materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye. Insert puzzled emoticon.

There’s no shortage of action over on the hold front. Cultural warriors take note: The Court appears to be holding the high-profile Olson-Boies gay marriage case, Hollingsworth v. Perry, 12-144, along with a Defense of Marriage Act (DOMA) case (Windsor v. United States, 12-63, out of the Southern District of New York) and a DOMA-like case (Brewer v. Diaz, 12-23, from the Ninth Circuit); perhaps they are in the holding pen while the Court waits for other DOMA cases to arrive before it considers a grant and chooses a vehicle. DaimlerChrysler AG v. Bauman, 11-965, appears to be a mercifully straightforward hold for Kiobel v. Royal Dutch Petroleum, 10-1491, the Alien Tort Statute extraterritorial-jurisdiction case. Similarly straightforward is the hold in Mendez v. Anadarko Petroleum Corp., 11-1535, which assuredly is being held for Lozman v. City of Riviera Beach, Florida, 11-626, which concerns whether a floating but indefinitely moored house is a “vessel” for purposes of federal maritime jurisdiction. But Mendez involves an extremely expensive- and difficult-to-move offshore gas rig, which, to quote the Fifth Circuit, would make moving even an expensive- and difficult-to-move floating casino (much less a mere floating house) “look as easy as unplugging a toaster.” (More disclaimers: My firm, Vinson & Elkins, LLP, represents the respondent in Mendez, including two of the three contributors to this post. And Goldstein & Russell, P.C. serves as co-counsel to the petitioner in Lozman.)

Just when this job starts to look easy, Hegel rears his ugly mug and we get the antithesis of straightforward: Unite Here Local 355 v. Mulhall, 12-99, which asks if an employer and union violate Section 302 of the Labor-Management Relations Act by entering into an agreement under which the employer promises to remain neutral to union organizing in return for the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business. If you have some idea why it’s being held, let us know. Maybe there’s a similar case coming down the pike? Meanwhile, Bullock v. BankChampaign N.A., 11-1518, which concerns what degree of trustee misconduct constitutes “defalcation” under Section 523(a)(4) of the Bankruptcy Code, thereby disqualifying the trustee’s resulting debt from discharge, hasn’t yet been scheduled for an October Conference (and thus looks like a hold), but will almost certainly be distributed today for the October 26 Conference.

We have an early frontrunner for the case that will serve as this Term’s Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, the Fair Sentencing Act retroactivity duo that inspired a g o o g o l of holds last term. Argument is still nearly a month away and already Chaidez v. United States, 11-820, appears to have yielded five holds: Poblete v. Arizona, 11-1381; Diaz-Palmerin v. United States, 11-1414; Alshaif v. North Carolina, 11-10826; Shahly v. Florida, 11-9642; and Gaitan v. New Jersey, 11-10846. Plus, there’s Diaz v. Wyoming, 11-9831, the holdish relist described above. Like Chaidez, all these cases concern the potential retroactivity of Padilla.

Rivaling that pack is the quintet of Perez v. United States, 11-9353; Hernandez-Rodriguez v. United States, 11-9661; Zuniga-Alcala v. United States, 11-9724; Quiroz-Hernandez v. United States, 11-9705; and Castillo-Quintanar v. United States, 11-10499, all of which come to us from the Fifth Circuit and all of which ask whether a defendant must specifically object to the substantive reasonableness of a sentence to preserve that claim, or whether (as is the case in most circuits) merely arguing for a lesser sentence is sufficient. The Fifth Circuit applied plain-error review to each defendant’s substantive-reasonableness claim, so maybe they are on hold for Henderson v. United States, 11-9307, the Fifth Circuit case concerning whether the plainness of an error is determined at the time of trial or the time of appeal. But looking at the facts in each suggests a weak connection at best. So maybe the five are waiting on a similar case to catch up, although at the moment none leap out at me.

Speaking of waiting on other cases, Argueta v. United States, 11-9981, a Confrontation Clause case asking whether the Sixth Amendment prohibits precluding a criminal defendant from learning the name of the testifying witness, appears to be awaiting the arrival at Conference of two petitions raising similar questions: Elashi v. United States, 11-1390, and El-Mazain, 11-10437. Last but not least, the apparent hold in Trevino v. Thaler, 11-10189, is most likely occasioned by one of its fellow Lone State travelers: The record requested in Balentine v. Thaler, 12-5906, only recently arrived at One First Street, and may still yet be incomplete. And at least the district court record appears to still be outstanding in Washington v. Thaler, 11-10870. All three cases seek remand in light of Martinez v. Ryan, the habeas case holding that procedural default on state ineffective-assistance-of-counsel claims does not bar a federal habeas court from hearing those claims if there was no counsel or ineffective counsel in the state proceedings.

Hearty congratulations to the intrepid few who managed to make it to the end of this extremely long post. Now that the Long Conference is behind us, mercifully for you and for me, future updates should be much shorter. For now, though, celebrate your triumph by observing what a reputable source indicates is the buffalo wing’s forty-eighth anniversary (though some fly-by-night sources dispute it) – or, as we prefer to think of it, its four dozen-th anniversary.

Thanks to Eric White and Jeremy Marwell for compiling and drafting this update.

Alleyne v. United States (relisted after the 9/24 Conference)

Docket: 11-9335

Issue(s): Whether this Court’s decision in Harris v. United States should be overruled.