Relist Watch

By John Elwood
on Jun 20, 2014 at 1:14 pm

John Elwood reviews Monday’s relisted cases.

The end is near. Only two more (scheduled) order lists to wade through before we, the Justices, and the nation’s schoolchildren take the entire summer off. But before you go scrambling for beach towels and sunscreen, let’s take a peek at some of the cases the Justices might be noodling over summer vacation.

As usual, we begin by checking in on last week’s relists. The granted-case relist streak continues. The Court granted cert. in a pair of one-time relists, Perez v. Mortgage Bankers Association, 13-1041, and Nickols v. Mortgage Bankers Association, 13-1052, which have been consolidated for one hour of oral argument. Perez and Nickols arise from a suit brought by the Mortgage Bankers Association to invalidate a Department of Labor interpretive rule, and ask whether the Administrative Procedure Act categorically prohibits agencies from revising their interpretive rules unless such revisions are made through notice-and-comment rulemaking. The Court also granted cert. in not one-, not two-, but three-time relist Elonis v. United States, 13-983. As you’ll recall, Elonis took to Facebook to exhibit some of his rap lyrics, which you should not expect to see recorded by One Direction anytime soon. For this Elonis was charged with violating the federal law making it a crime to “transmit[] in interstate or foreign commerce any communication containing … any threat to injure the person of another.” As framed by the petition, the case presents the question whether, consistent with the First Amendment, conviction of threatening another person requires proof of the defendant’s subjective intent to threaten. The Court apparently used the extra relists to formulate an additional question it asked the parties to address, suggested by an ill-fated petition the Court denied earlier this term: “Whether, as a matter of statutory interpretation, conviction of threatening another person … requires proof of the defendant’s subjective intent to threaten.” Elonis is an interesting case for a number of reasons, not least of which is that it gives the Court another chance to work the f-word into the United States Reports. Pending resolution of Elonis, the Court appears to be holding the case’s twice-relisted doppelganger, Martinez v. United States, 13-8837.

Alas, not all the news was good for last week’s relist crop. The Court denied cert. in one-time relist Brown v. Shaw, 13-897, a state-on-top habeas case that asked whether, in an ineffective assistance claim, “a state appellate court’s holding that an omitted state law issue ultimately lacked merit precludes a federal habeas court from later finding either deficient performance or prejudice” under Strickland v. Washington. The Court finally acted in Elmbrook School District v. Doe, 12-755, as the Court denied cert. in the eleven-time relist that asked whether a public high school can hold its graduation in a church for reasons of convenience without offending the Establishment Clause. The petitioner didn’t depart completely empty-handed though: Justice Scalia, joined by Justice Thomas, awarded a consolation prize, a dissent from the cert. denial arguing that the Court should grant the petition or GVR it in light of Town of Greece v. Galloway. But just as Justice Scalia’s dissent in United States v. Windsor arguably backfired by providing ammunition to challengers of restrictions on same-sex marriage, his Elmbrook dissent will be a boon to those who wish to “intru[de] upon [the] inner peace” of the Justice with the largest functional vocabulary through “the playing in public of … Stravinsky” on municipal buses and in government agencies.

We have just a single returning relist: Whitfield v. United States, 13-9026, which is back for its second week. Whitfield asks whether 18 U.S.C. § 2113(e), making it illegal for a bank robber to force another to “accompany him,” “requires proof of more than a de minimis movement of the victim.”

Alright, on to new relists. Brace yourselves, because we have quite a few, and they are not, shall we say, gripping. First up is Wellness International Network, Ltd. v. Sharif, 13-935, which the Court had been holding for Executive Benefits Insurance Agency v. Arkison. After Wellness International attempted to collect a judgment against respondent Sharif, Sharif filed for bankruptcy. Wellness International prevailed, but the Seventh Circuit – citing the Supreme Court’s then-recent decision in Stern v. Marshall – determined the bankruptcy court lacked the constitutional authority to decide the underlying state law issue. The petition asks : (1) whether the presence of a subsidiary state property law issue in an action to determine whether property in the debtor’s possession is property of the bankruptcy estate means that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action and (2) whether Article III permits bankruptcy courts to exercise jurisdiction over claims against a debtor where it has consented to the exercise of such judicial power by voluntarily filing for bankruptcy relief. The petition also asks a couple questions that appear to have been answered by Arkison. The Justices may simply need another week to mull this one over because they keep nodding off whenever they read the questions presented.

Next we have a pair of government petitions about the tolling of time limits under the Federal Tort Claims Act (FTCA). After being held in immigration detention while awaiting deportation, the respondent in United States v. Wong, 13-1074, filed two actions relating to her detention: a Bivens claim against the Immigration and Naturalization Service (INS) in federal court, and an administrative FTCA claim. While Wong’s administrative claim was pending, she moved to add an FTCA claim in her federal suit. The district court belatedly adopted the magistrate judge’s recommendation to add the FTCA claim to the federal action after the six-month deadline to file an FTCA claim had passed, but the court agreed to equitably toll the time between the date the magistrate judge recommended that Wong be granted leave to amend and the date the district court actually granted leave. The Ninth Circuit, sitting en banc, agreed that the FTCA’s time limit could be tolled. In its petition, the government asks “[w]hether the six-month time bar for filing suit in federal court under the [FTCA] is subject to equitable tolling.” United States v. June, 13-1075, involves the same issue in an administrative context, stemming from a car accident and a claim against the Federal Highway Administration. The government’s June petition asks “[w]hether the two-year time limit for filing an administrative claim with the appropriate federal agency under the [FTCA] is subject to equitable tolling.”

Let’s turn now to a much more exciting topic: trains. Department of Transportation v. Association of American Railroads, 13-1080, involves Section 207(a) of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly … develop” the metrics and standards for Amtrak’s performance to be used to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains as required by federal law. If the FRA and Amtrak cannot agree on the metrics and standards within 180 days, Section 207(d) provides for the STB to “appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration.” In 2011, the Association of American Railroads filed suit against the Department of Transportation (DOT) arguing, among other things, that Section 207 “violates the non-delegation doctrine” by “placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate.” The district court granted summary judgment to the DOT but the D.C. Circuit reversed, holding that Section 207 “constitutes an unlawful delegation of regulatory power to a private entity.” DOT’s petition seeks to revisit that decision.

Hana Financial, Inc. v. Hana Bank, 13-1211, involves a trademark dispute. Petitioner Hana Financial sued respondent Hana Bank, arguing that its use of that trademark infringed its rights. Though respondent began using “Hana Bank” well after petitioner first used “Hana Financial,” respondent argued that it actually had priority under the trademark “tacking” doctrine, under which a party may “tack” its earlier use of a trademark to a latter mark that has been slightly modified. The district court and Ninth Circuit held that whether the trademark had been properly tacked was a question of fact for jury determination, rather than a question of law for the court. Hana Financial’s petition asks “[w]hether the jury or the court determines whether use of an older mark may be tacked to a newer one.”

COAST Candidates PAC v. Ohio Election Commission, 13-1066, stems from a challenge to an Ohio law making it a crime to “post, publish, circulate, distribute, or otherwise disseminate a false statement” designed to “promote the adoption or defeat of any ballot proposition or issue.” If that sounds familiar, that’s because it’s one code provision over from the one at issue in Monday’s decision in Susan B. Anthony List v. Driehaus, where the Court held that a preenforcement challenge to a similar Ohio law – prohibiting certain “false statements” during a political campaign (as opposed to an issue campaign) – was justiciable. Petitioners filed a federal suit challenging the law on First Amendment grounds, which the district court subsequently dismissed, holding that petitioners lacked standing because they failed to show more than a “subjective allegation of chill” and “[did] not show[] that there is a credible threat of prosecution.” The Sixth Circuit affirmed. The cert. petition appears to reproduce verbatim the questions presented in Susan B. Anthony List, right down to its use of “desuetude.” COAST seems a likely candidate for a GVR.

We’re almost there, but this next case is a particularly tough slog. This week’s relist Williams v. Johnson, 13-9085, is the revenant of last Term’s decision in Johnson v. Williams. After being found guilty of murder and receiving a life sentence, Williams argued on appeal that the trial court’s questioning and subsequent dismissal of a juror during deliberations violated both the Sixth Amendment and California law. The California court of appeals held that the juror had been properly dismissed but did not expressly acknowledge that Williams had raised a federal claim. On habeas review, the Ninth Circuit concluded that the state court of appeals had not considered Williams’ Sixth Amendment claim, reviewed that claim de novo, and granted relief. During the case’s first trip to One First Street, the Supreme Court reversed, holding that, when a state court rules against a defendant in an opinion that rejects some of a defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits. The Court limited its opinion to state-court deference, denying cert. on the issue whether Williams could “prevail under deferential review”; the Johnson opinion nevertheless stated that “under [the state-deference] standard respondent is not entitled to habeas relief.” Williams unsuccessfully petitioned for a rehearing to clarify the Court’s language. On her second trip, Williams now asks (1) “[d]id th[e] Court mean to bar a deferential review on remand, or did [its] denial of rehearing simply reflect that disputes regarding the scope of this Court’s mandate are to be resolved on remand?”; and (2) “[c]an the denial of certiorari or the denial of rehearing constitute ‘certiorari granted’ under 28 U.S.C. § 1254, where the Court’s opinion contains no discussion of a question outside a limited grant of certiorari?”

Our last new relist this week is Ballard v. Pennsylvania, 13-9364, a capital case. Petitioner Michael Ballard was charged and convicted in a quadruple homicide, after which the jury was instructed on aggravating and mitigating circumstances. Though Ballard presented evidence of sixteen mitigating circumstances – one of which was specifically listed in the governing Pennsylvania statute, and the rest fell within a “catch-all mitigator” provision – the verdict form did not individually list each of his non-statutory mitigating circumstances. The jury subsequently returned a sentence of death for each of Ballard’s victims. Ballard argues that each of the non-statutory mitigating circumstances should be individually listed on the verdict form.

And with that, today’s ordeal is over, but at least we don’t have much longer to go. We’ll let you get back to whatever it was you were doing before reading this. See you back here next week!

Thanks to Conor McEvily and Dmitry Slavin for compiling and drafting this update.

[page]13-9026[/page]

(relisted after the June 5 and June 12 Conferences)

[page]13-935[/page]