Relist Watch

By John Elwood
on Nov 14, 2014 at 8:42 am

John Elwood reviews Monday’s relisted cases.

With the noisy midterms firmly behind us, we can at last breathe easy and turn our attention to more pressing matters. Like net neutrality, or climate change, or the proliferating parodies of that 10 Hours Walking in NYC video. Or, for those more easily offended/less voyeuristically inclined, there’s Relist Watch – the Internet’s One-Stop Source for Ennui.

In light of our forthcoming day of public thanksgiving, let’s start with something for which to be thankful: last week’s Conference proved to be a veritable horn of plenty for last week’s relists. On Friday, the Court granted cert. in a duo of one-time relists – Chen v. Mayor and City Council of Baltimore, 13-10400, is the high-profile one, asking whether Federal Rule of Civil Procedure 4(m) gives a district court the discretion to extend the time for service of process absent a showing of good cause. The other case asks involves one of those obscure questions that is unlikely to draw much attention outside the specialized sliver of the bar it affects. What was it again? Oh yes — King v. Burwell, 14-114, asking whether the Affordable Care Act’s federal tax-credit subsidies for health insurance purchased through an “Exchange established by the State” also apply to insurance policies purchased through federal exchanges. Thus, aside from the cases granted out of the Long Conference, the Court appears to be firmly adhering to its practice of relisting cases at least once to perform a “quality check” before granting them.

Monday’s order list brought other good news for the relisterati. In Johnson v. City of Shelby, 13-1318, a four-time relist, the Court summarily reversed the Fifth Circuit’s affirmance of a summary judgment against the petitioners for failure to expressly invoke 42 U.S.C. § 1983 in their complaint. “[N]o heightened pleading rule,” the Court held, “requires plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in order to state a claim.” The Court likewise summarily reversed in Carroll v. Carman, 14-212, a four-time relist, in which the Third Circuit held that a Pennsylvania state police officer violated the plaintiffs’ clearly established Fourth Amendment rights when he failed to begin their police encounter at their front door. Side-stepping the broader issue of “whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door,” the Court held only that this question was not “clearly established” – i.e., that “existing precedent [did not] place the … constitutional question beyond debate.”

Unfortunately, this week’s courtucopia (#puns) yielded a few rotten apples too. After relisting it once, the Court denied cert. in Martel v. Lujan, 14-132, a state-on-top habeas case from (of all places) the Ninth Circuit, thereby indefinitely delaying the answer to whether a defendant’s in-court confession is “fruit of the poisonous tree” in harmless-error analysis. We’re still trying to figure out the Court’s practice of “rescheduling” cases (i.e., deciding before the scheduled Conference date to move the case to another Conference). But two of last week’s rescheduled cases (both thrice rescheduled) were similarly brushed aside: Crews v. Farina, 13-1227, a state-on-top habeas case involving how much leeway a federal court is allowed in determining that a state court made an unreasonable factual determination; and Whitman v. United States, 14-29, a case seeking to clarify several standards regarding insider trading. The petitioner in Whitman at least got a consolation prize on his way out the door: Justice Scalia, joined by Justice Thomas, penned a statement respecting the denial of cert., noting that while Whitman did not seek review on the issue, he would be receptive to reviewing a case asking “[whether] a court owe[s] deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement.”

The rest of last week’s relists, like the annual pardoned turkey, gobble on. Brumfield v. Cain, 13-1433 (fourth relist since the record arrived), asks (1) whether a state court that relies entirely on proof presented at a petitioner’s penalty phase proceeding to decide his claim of mental retardation has based its decision on an unreasonable determination of facts; and (2) whether the court must fund an indigent petitioner’s attempt to obtain evidence of his mental retardation. Kalamazoo County Road Commission v. Deleon, 13-1516 (fourth relist since the record was requested) questions whether it is an “adverse employment action” for a discrimination claim, or a “materially adverse action” for a retaliation claim, when an employer grants an employee’s request for a job transfer that he winds up disliking. We pause to note again that both of this week’s summary reversals had just notched their fourth relists.

Joseph v. United States, 13-0639 (second relist), asks whether the Eleventh Circuit’s appellate procedural default rule – categorically prohibiting consideration of issues not raised in an appellant’s opening brief – conflicts with the retroactivity rule set out in Griffith v. Kentucky. Glebe v. Frost, 14-95 (second relist), questions whether a limitation on a closing argument in a criminal case is a structural error under Herring v. New York. Toca v. Louisiana, 14-6381, (second relist) concerns the retroactivity of Miller v. Alabama, in which the Court held that life without parole for minors violates the Eighth Amendment. And Ryan v. Hurles, 14-191 (second relist this Term, twenty-fourth of all time) addresses (1) whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim, and (2) whether the ineffectiveness of post-conviction counsel can provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim. While the Court requested (and received) the record in Hurles, curiously, both events have disappeared from the online docket. Finally, Dean Foods Co. v. Food Lion, LLC, 14-110, has now been rescheduled a second time. Dean seeks an answer to whether, in antitrust or other cases in which the plaintiff must prove causation in fact as an element of the claim, a plaintiff must produce evidence of causation to defeat a motion for summary judgment, or whether a court may instead presume causation at summary judgment and permit the case to proceed to trial based on that presumption.

That’s it for the old stuff. On the new-relist front we’ve got a half-dozen fresh faces. First up are a pair of bankruptcy petitions that are “identical in substance”: Bank of America v. Caulkett 13-1421, and Bank of America v. Toledo-Cardona, 14-163. The twin cases arise from the Eleventh Circuit’s allegedly aberrant interpretation of Bankruptcy Code § 506, which governs the treatment of undersecured claims. Each debtor in the cases had two mortgages on his house, and the outstanding balance on the first mortgage exceeded the house’s market value. After filing for bankruptcy, both debtors filed a motion to “strip off” – i.e., void – Bank of America’s junior liens under Section 506. The Eleventh Circuit abided the stripping (as some judges are wont to do). Each petition presents the same question the Court recently declined to hear in Bank of America, N.A. v. Sinkfield: “whether, when a first mortgage on a chapter 7 debtor’s house is undersecured, so that a second mortgage is completely ‘underwater,’ the debtor may not only discharge his or her personal liability for the second mortgage loan, but also ‘strip off’ the lien itself, leaving the mortgage-holder without the right to foreclose on the property even if the value of the property subsequently increases.” The use of the word “strip” in their QPs officially makes these the most exciting bankruptcy cases in at least a decade. Try as we might, it is a challenge to find SFW hyperlinks on the subject of “twin strippers.”

Our next two new relists, while also related, are less twins than “kissin’ cousins” from the Fourth and Fifth Circuits. In Walker, Texas Ranger v. Texas Division, Sons of Confederate Veterans, Inc., 14-144, the Sons of Confederate Veterans (who, if their name is true in any non-metaphorical sense, must consist of a small number of very pruney men) sought approval from the Texas DMV for a specialty license plate containing its logo, “a square confederate battle flag surrounded … by the words ‘Sons of Confederate Veterans 1896.’” The DMV rejected the proposal, and the SCV sued, claiming violations of their free speech rights. The Fifth Circuit agreed, declaring that the messages and symbols on state-issued specialty license plates are “private speech” (rather than “government speech”) and holding that, by rejecting the dixie-plate proposal, Texas engaged in impermissible “viewpoint discrimination.” Walker’s companion with an entirely different southern accent, Berger v. ACLU of North Carolina, 14-35, stems from a North Carolina law authorizing several specialty license plates including one bearing the message “Choose Life.” The ACLU sought to enjoin the law, and the Fourth Circuit agreed, declaring that specialty license plates were “mixed speech” – “not purely government or private but instead implicat[ing] both” – and holding that by “issuing a ‘Choose Life’ specialty plate while refusing to issue a pro-choice specialty plate” North Carolina committed “blatant viewpoint discrimination squarely at odds with the First Amendment.” The two petitions present questions about whether messages on state-issued specialty plates qualify as government speech and are immune from any requirement of viewpoint neutrality.

This week’s penultimate newcomer, Sexton v. Panel Processing, Inc., 14-152, hails from the purlieu of perfectly pleasant peninsulas. Sexton’s petition asks whether Section 510 of the Employee Retirement Income Security Act (ERISA) “prohibits retaliation against an employee who makes unsolicited complaints to management regarding possible ERISA violations.” Sexton claims he was fired for telling the CEO of Panel Processing that his actions violated ERISA, and the lower courts concluded he was not protected because he volunteered the information rather than providing it in response to an investigation.

Finally, Christeson v. Roper, 14-6873, a capital case from Missouri, involves a death-row inmate whose appointed lawyers failed to meet the filing deadline for his federal habeas petition. For years after his federal case had been dismissed, Christeson’s attorneys allegedly allowed him to believe that his federal case was ongoing, and refused to argue for equitably tolling the deadline out of reticence to admit their failure. After Christeson’s counsel finally sought outside assistance – seven years after missing their deadline – the errors came to light. Nevertheless, the district court denied outside counsel’s requests to appoint conflict-free counsel – that is, counsel whose own neglect wasn’t the basis for the sought-after relief – and the Eighth Circuit summarily affirmed without opinion. Christeson’s petition poses two questions: (1) whether “an actual conflict of interest meets the “interests of justice” standard established in Martel v. Clair [] and require[s] substitution of conflict free counsel for conflicted counsel appointed under 18 U.S.C. § 3599”; and (2) “[w]hether counsel appointed under 18 U.S.C. § 3599, who procedurally defaulted the client’s federal habeas application by untimely filing the petition, should continue their court appointment and determine the existence of, and plead, their own abandonment and/or egregious misconduct warranting equitable tolling of their client’s statute of limitations under Holland v. Florida.” [Disclaimer: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, filed an amicus brief in support of the petitioner.]

If you’ve made it this far into today’s post, you’ve already squandered a goodly portion of your day. Let’s hope tomorrow is more productive!

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

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[page]13-1433[/page] (relisted after the September 29, October 10, October 17, October 31, and November 7 Conferences)

[page]13-1516[/page]

(relisted after the September 29, October 10, October 17, October 31, and November 7 Conferences)

[page]13-10639[/page]

(relisted after the October 31 and November 7 Conferences)

[page]14-95[/page]

(relisted after the October 31 and November 7 Conferences)

[page]14-191[/page]

(relisted after the October 31 and November 7 Conferences)

[page]14-6381[/page]

(relisted after the October 31 and November 7 Conferences)

[page]13-1421 [/page]