Relist (and Hold) Watch

By John Elwood
on Nov 6, 2012 at 1:28 pm

John Elwood reviews Monday’s relisted and held cases.

At long last, it’s finally here: the first Tuesday after the first Monday in November. And you know what that means: Fifty hours of ultimate fighting is finally available on a twenty-DVD box set. It also appears that some people are lining up at community centers, elementary schools, and government buildings for some kind of sticker distribution. But here on SCOTUSblog, we mark the occasion the same way we do any Tuesday: by making your eyes glaze over.

The Court granted cert. yesterday in . . . well, nothing, actually. It did, however, deliver a nice present to lawyers for people who sue the government, in the form of a four-page per curiam opinion summarily vacating the Fourth Circuit in the three–time relist Lefemine v. Wideman, 12-168. The Court used the occasion to say that winning an injunction (though not damages) was enough to “materially alter[] the legal relationship between the parties” in such a way as to be a “prevailing party” entitled under federal law to attorney’s fees — and to remind us exactly where in every lawyer’s favorite phrase the apostrophe goes.

Though the Court finally moved on Lefemine, the rest of last week’s relists are hanging out in limbo a little while longer: the thrice-relisted (since the Court called for a response) Nitro-Lift Technologies, LLC v. Howard, 11-1377 (involving whether a state court can avoid enforcing an otherwise-valid arbitration agreement when it determines the underlying contract is against state public policy against covenants not to compete); the twice-relisted Delling v. Idaho, 11-1515 (involving whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases); and a pair of twice-relisted cases involving constitutional challenges to the 2006 reenactment of Section 5 of the Civil Rights Act, Nix v. Holder, 12-81, and Shelby County v. Holder, 12-96. (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 Delling.) This seems like a good occasion to revisit that old saw that, yes, I do sometimes recite in my sleep: If a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But once a case has 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. (unless something else happens).

There’s only one new relist to report: Bond v. United States, 12-158. If Bond sounds familiar to you (for reasons other than Sean Connery, denture cream, or debt instruments), it’s because the Court already weighed in on the case two Terms ago. In that Bond v. United States, the Court held, by a vote of nine to zero, that a criminal defendant indicted on charges of violating a federal statute has standing to challenge the validity of the statute on the ground that it violated the Tenth Amendment’s reservation of powers to the states. The Third Circuit then upheld the federal statute (namely, the Chemical Weapons Convention Implementation Act) as a valid exercise of Congress’s treaty power in implementing the Chemical Weapons Convention, reasoning that it was required to do so by the Court’s ninety-two-year-old decision in Missouri v. Holland. Bond asks whether the Constitution’s structural limits on federal authority impose any constraints on Congress’s authority to enact legislation to implement a valid treaty, and whether the Act can be interpreted not to reach ordinary poisoning cases. Bond is also noteworthy because filed in the docket is something of a rare bird: the cert.-stage amicus brief supporting respondents (which some research suggests increases the likelihood of a grant, and more recent research suggests has an effect not “statistically differentiable from zero”).

Bond is of great importance legally, but it would not be half as interesting if the facts weren’t so compelling: Petitioner discovered that her friend was pregnant with her husband’s baby and sought revenge against her. It is straight out of the Tammy Wynette catalogue, but this case will never be made into a country song: It’s too hard to rhyme “put caustic substances on objects the woman was likely to touch.”

The Court dealt us two holds. The first comes to us from southwest Louisiana, where Lemelle v. St. Charles Gaming Co., Inc., 12-130, is almost certainly being held for Lozman v. City of Riviera Beach, Florida, 11-626. Like Lozman, Lemelle asks one of life’s most profound questions: Just what is a “vessel?” On that word’s meaning in 1 U.S.C. § 3 hinges the scope of federal maritime jurisdiction, and with it, arguably the availability of various forms of relief. The petitioner would like the Court to hold that the riverboat casino at issue in Lemelle is indeed a vessel, while the respondent St. Charles Gaming Co. is hoping the odds favor the house. (The firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in Lozman.) Yesterday’s other hold takes us back to the Third Circuit. There, the Court most likely took the government up on its suggestion to hold Figuereo-Sanchez v. United States, 12-164, for Chaidez v. United States, 11-820. Both cases concern the retroactive application of Padilla v. Kentucky.

That’s all there is this week. You may now turn your attention back to the unfolding spectacle of today’s most important election. But whether the winds of change sweep Remengesau into office or we get four more years of Toribiong, the Court will be conferencing Friday just the same. That is just another way we are fortunate to be living in a stable republic. So join us back here next week after Veterans’ Day for another patriotic edition of Relist (and Hold) Watch. Same time. Same place. Same “jokes.”

Thanks to Eric White for drafting and compiling this update.

Nitro-Lift Technologies, LLC v. Howard (relisted after the October 12, October 26, and November 2 Conferences)

Docket: 11-1377

Issue(s): Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and 45 years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).