John Elwood reviews Monday’s relisted and held cases.
Of last week’s fourteen – count ‘em, fourteen – relists, two took up residence in the Pantheon of the Chosen: On Friday, the Court granted cert. in American Trucking Ass’ns v. Los Angeles, 11-798, reviewing the Ninth Circuit’s decision that the Port of Los Angeles’s “Clean Trucks Program” is not preempted by federal legislation, and Sekhar v. United States, 12-357, in which the Second Circuit held that the New York Comptroller General’s investment recommendation was “property” that could be extorted for purposes of the Hobbs Act. Meanwhile, resting in the Pantheon’s antechamber are the mirror-image duo Unite Here Local 355 v. Mulhall, 12-99, and Mulhall v. Unite Here Local 355, 12-312; the Court has called for the views of the Solicitor General on (among other things) whether an employer and a union can enter into an agreement in which the employer promises to remain neutral in any union organizing in return for the union’s promise to forego its rights to picket, boycott, make sarcastic comments about the boss’s plaid pants, and otherwise put pressure on said employer. But not everybody had a happy ending. Bad news for purveyors of metal-flake fiberglass fishing boats as the Court denied cert in Bass Pro Outdoor World LLC v. Kelly, 12-407, leaving in place the 151:1 ratio punitive-damages award – although as respondents seek to enforce the judgment, it might represent a buying opportunity for lightly used stuffed Elk. What’s the present tense of “Chafed”? I’m guessing “Chafee,” as in Chafee v. United States, 12-223, since the Court denied cert. on the Ocean State governor’s Interstate Agreement on Detainers petition and its companion, Pleau v. United States, 12-230.
But it was a banner week of more-of-the-same, as most of last week’s relists are back for a return appearance, including seven-time relister Carol Anne “there’s a dissent coming any day” Bond v. United States, 12-158 (Congress’s treaty-implementation power), and three-timer City of New York v. Southerland, 12-215 (NYC case worker qualified immunity). Also back are all of last week’s habeas relists: Marshall v. Rodgers, 12-382, (state on top), Deyton v. Keller, Jr., 12-6230, (state on bottom), and Burt v. Titlow, 12-414, (state on top, bottom, and some middle; no, wait – just top). Plus, the two Fifth Circuit cases, Calhoun v. United States, 12-6142 (involving a prosecutor’s inappropriate question) and Womack v. United States, 12-6988 (involving the tax preparer’s right to prove his “ineptitude” defense).
If we’re in an age of austerity, the Supreme Court hasn’t heard yet. To that huge pile of returning relists, the Court has added another seven (!) cases. The first three — Chadbourne & Park LLP v. Troice, 12-79; Willis of Colorado Inc. v. Troice, 12-86; Proskauer Rose LLP v. Troice, 12-88 — all arise from former Antiguan knight Allen Stanford’s multi-billion-dollar Ponzi scheme. The Fifth Circuit held that SLUSA, the Securities Litigation Uniform Standards Act — not to be confused with SLUSSA, the support group for chronically-fatigued Swedes — did not preclude state-law claims against various entities that did investment-related work for Stanford’s companies. The Court asked the Solicitor General to weigh in, and in October, he recommended the Court deny cert. because, “[a]lthough the Fifth Circuit erred in its application of SLUSA’s preclusion provision,” the case “turned on an unusual fact pattern” and didn’t implicate a circuit split.
Also out of the Fifth, University of Texas Southwestern Medical Center v. Nassar, 12-484, asks whether but-for causation is a necessary element of the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). The Fifth Circuit panel held that a “mixed motive” was enough, and although six judges voted for en banc review, that wasn’t enough, because nine voted against.
Proving that people will go to great lengths for extra legroom, the petitioner in Northwest, Inc. v. Ginsberg, 12-462, sued Northwest Airlines for booting him from its WorldPerks Platinum Elite frequent flier program, alleging the airline breached its contractual obligations and violated Minnesota’s implied covenant of good faith and fair dealing. The trial court dismissed the suit, in part because it found the implied covenant preempted by the Airline Deregulation Act of 1978. Not so, said the Ninth Circuit, in an opinion having nothing whatever to do with any desire to upgrade to first class for the flight out to the Hawaii sitting, concluding that the Act’s focus on preempting state laws with “force and effect of law related to a price, route, or service of an air carrier” (49 U.S.C. § 41713(b)) did not cover frequent flier miles.
Brooks v. Arthur, 12-447, concerns two former Virginia Department of Corrections officers who brought First Amendment claims stemming from their termination (for alleged work deficiencies); the Fourth Circuit held that because the dispute concerned complaints about the “employee’s own duties” filed in an “internal grievance procedure,” it was not a matter of public concern. Last but not least, Marrero v. United States, 12-6355, concerns the proper application of the categorical analysis in Shepard v. United States in determining whether Marrero’s earlier convictions for simple assault and third-degree murder qualify as “crimes of violence.”
On the hold front, the Court has dealt us twenty-seven holds, and let me tell you, if you are trying to increase page views, do not use the phrase “twenty-seven holds” – which, based on scientific testing, apparently is HTML code that makes browsers close. Lucas v. United States, 11-1536, and Dorsey v. United States, 12-6571, are 18 U.S.C. § 924(c)(1)(A) cases, and likely holds for Alleyne v. United States, 11-9335, which seeks to revisit the Court’s conclusion in Harris v. United States that judges (and not just juries) can decide facts necessary to impose mandatory-minimum sentences. The facts in Mubdi v. United States, 12-7398, involve both a drug-sniffing dog (and thus in theory could be a hold for Florida v. Harris, 11-817) and a mandatory minimum sentence based on judicial factfinding (and thus could be a hold for Alleyne). We suspect the latter. Mathur v. United States, 12-439, involves the retroactivity of Padilla v. Kentucky (holding that the Sixth Amendment right to counsel requires a defense attorney to tell his client whether a plea agreement might result in deportation) and thus is a likely hold for Chaidez v. United States, 11-820. Brooks v. Minnesota, 12-478, which involves the application of the Fourth Amendment’s exigent-circumstances exception to the warrantless collection of urine for drug and alcohol testing, is a likely hold for Missouri v. McNeely, 11-1425, argued last week, involving the warrantless taking of blood samples from drunk drivers under that theory. McCormick v. Idaho Dep’t of Health and Welfare, 12-565, concerns preemption of state laws under lien provisions in the Medicaid Act, and thus is most likely a hold for Delia v. E.M.A., 12-98.
Finally, the remaining twenty-one holds (Adams v. Florida, 12-7124; Wilkerson v. Florida, 12-7237; Hurley v. Florida, 12-7316; Golden v. Florida, 12-7317; Deneus v. Florida, 12-7318; McComas v. Florida, 12-7349; Gibson v. Florida, 12-7350; Wilson v. Florida, 12-7351; Walton v. Florida, 12-7353; Gawronski v. Florida, 12-7354; Miller v. Florida, 12-7355; Bowman v. Florida, 12-7356; Williams v. Florida, 12-7357; Niles v. Florida, 12-7362; Barton v. Florida, 12-7364; Ryan v. Florida, 12-7376; Fijnje v. Florida, 12-7402; Gionfriddo v. Florida, 12-7406; George v. Florida, 12-7409; Graham v. Florida, 12-7422; and Jackson v. Florida, 12-7321) are another installment on the 117 cases set to come out of the Catatonic State challenging a law that made knowledge of the illegal nature of a substance an affirmative defense rather than an element of the crime. As mentioned in last week’s post, expect more holds before and immediately after the State of Florida files a mega-brief in opposition January 28.
Thus ends another overlong and undergood installment of Relist (and Hold) Watch. The Court is meeting this Friday, but the order list won’t come down until after the MLK Holiday. In the meantime, good luck today choosing among all the parties celebrating the 130th anniversary of the Pendleton Civil Service Reform Act, the 94th anniversary of the ratification of prohibition, and the 22d anniversary of the announcement of a New World Order.
Thanks to Conor McEvily and Eric White for compiling and drafting this update.
[page]12-79[/page] (relisted after the January 11 Conference)
[page]12-86[/page] (relisted after the January 11 Conference)
[page]12-88[/page] (relisted after the January 11 Conference)
[page]12-484[/page] (relisted after the January 11 Conference)
[page]12-462[/page] (relisted after the January 11 Conference)
[page]12-447[/page] (relisted after the January 11 Conference)
[page]12-414[/page] (relisted after the January 4 and January 11 Conferences)
[page]12-6230[/page] (relisted after the January 4 and January 11 Conferences)
[page]12-6142[/page] (relisted after the January 4 and January 11 Conferences)
[page]12-6988[/page] (relisted after the January 4 and January 11 Conferences)
[page]12-158[/page](relisted after the November 2, November 9, November 20, November 30, December 7, and January 4 Conferences)
[page]12-215[/page] (relisted after the December 7 and January 4 Conferences)
12-6355 (relisted after the January 11 Conference)
[page]12-6355[/page]
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