Relist Watch

By John Elwood
on Oct 10, 2013 at 9:04 pm

John Elwood reviews Monday’s relisted cases.

Much of D.C. may be suffering from the partisan gridlock gripping the White House and Congress, but the Least Dysfunctional Branch is back, rested, and ready to get to work. For the tiny fraction of America’s citizenry that is even aware that there is a Supreme Court, most of the attention has been devoted to things like campaign finance cases and legislative prayer. But the true nerderati know that what really matters are the relists.

Those of you who are new to the rich, satisfying pleasure of Relist Watch, or who ended up here through a Googling error, or are just trying to keep occupied during a work furlough, might be asking yourselves, “Just what is a relist?” When the Court releases its orders, the floodgates open and out pours a trickle of grants and a deluge of denials, but some cases are left behind. Sometimes those cases are not disposed of because one or more of the Justices has asked that they be considered again at another Conference (usually the very next one), which is sometimes a sign that the Court is taking a closer look at them. Those are the relists. Then we carefully analyze it and write up one of these mildly illuminating missives.

Serial time-wasters will recall that, before skipping town in June, the Justices gave us an unusual final OT2012 relist: Octane Fitness v. Icon Health and Fitness, 12-1184, a Federal Circuit patent case. The endorphins were flowing over at Octane Fitness last week when the Court granted cert. on its question regarding what constitutes an “exceptional case” under 35 U.S.C. § 285, the statute permitting courts to grant prevailing patent infringement litigants reasonable attorney’s fees in “exceptional cases.” Octane Fitness, makers of a product that bears a striking resemblance to the creature in Alien but is still more terrifying, had complained that the Federal Circuit’s standard for prevailing accused infringers was much higher than for prevailing patent-holders. Maybe not for long.

Now on to new business. Of the 2,141 petitions that piled up over the summer, the Long Conference left behind seventeen relists. And of that seventeen, a walloping nine are what are collectively referred to as the “greenhouse gas cases,” challenging aspects of the Obama administration’s regulation of carbon dioxide and other gases: Coalition for Responsible Regulation v. Environmental Protection Agency, 12-1253; Utility Air Regulatory Group v. Environmental Protection Agency, 12-1146; Virginia v. Environmental Protection Agency, 12-1152; Pacific Legal Foundation v. Environmental Protection Agency, 12-1153; American Chemistry Council v. Environmental Protection Agency, 12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, 12-1268; Texas v. Environmental Protection Agency, 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, 12-1272. There is a lot going on in those petitions, and the Justices may need more time to sort everything out. If you noticed that those petitions aren’t, strictly speaking, listed in numeric order, you may have detected which of the petitions is my personal favorite. (Obligatory disclaimer: I and my firm, Vinson & Elkins LLP, represent the petitioners in Coalition for Responsible Regulation.)

The next case concerns two things that annoy the editorial board of The New York Times: buying guns and saving money. The petitioner in Abramski v. United States, 12-1493, says he was only trying to save a relative a few bucks when, to take advantage of a discount for former cops, he purchased a handgun that he intended to sell to his uncle (who was not prohibited from owning a firearm). But when he completed the purchase, Abramski ticked a box on an official form affirming that he was the “actual buyer” of the firearm. After the FBI began looking into Abramski as a possible suspect in a bank robbery (he was never charged), it uncovered what it construed as a straw purchase. The Fourth Circuit, joining the Sixth and Eleventh Circuits, ruled against Abramski, holding that a gun buyer’s intent to sell a firearm in the future to someone who could have lawfully purchased the firearm himself was a fact “material to the lawfulness of the sale” for purposes of a false-statement charge under 18 U.S.C. § 922(a)(6); Abramski asks the Court to adopt the contrary position of the Fifth and Ninth Circuits. Happy Arbor Day to you, Mr. Abramski!

Speaking of straws, the petitioner in Robers v. United States, 12-9012, pleaded guilty to conspiracy to commit wire fraud after he was caught acting as a straw buyer in a mortgage-fraud scheme, for which he was sentenced to three years’ probation and ordered to pay a couple hundred G’s in restitution. (It seems the temptation to commit mortgage fraud is not limited to our nation’s treasured cultural icons.) The Seventh Circuit upheld the restitution calculation, rejecting Robers’s argument that he is entitled to an offset for the fair market value of the real estate as of the “date the property is returned” under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, because the property he stole was money, not real estate. The Court may have put Robers on for the October 11 Conference to allow it to catch up with the later-filed Lipsey v. United States, 12-10638, which appears to raise the same issue and was scheduled all along for that Conference.

Meanwhile, straight outta Locash comes Stanton v. Sims, 12-1217, which asks whether the “hot-pursuit” exception to the warrant requirement, often mistaken for the “Hot Pocket” exception, applies to fleeing misdemeanants, and whether a police officer is entitled to qualified immunity from a suit by a property owner struck in the face during that pursuit. Judge Stephen Reinhardt delivered the Ninth Circuit’s opinion, so I’ll leave you to guess whether the officer is Stanton or Sims.

Given the number of cases, it was a statistical certainty that the relists would require us to wade into the murky waters of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Five times, in fact. The respondent’s name in the first case nicely captures most people’s instinctive reaction upon discussing AEDPA: Ryan v. Hurles, 12-1472, is a state-on-top habeas case in which the Ninth Circuit (per Judges Nelson and Pregerson, with Judge Ikuta dissenting) held that the Arizona courts’ failure to provide Mr. Hurles an evidentiary hearing on his judicial-bias claim was per se unreasonable and not entitled to deference. Meanwhile, the Ninth on the Ohio teed up Rapelje v. McClellan, 12-1480, a state-on-top habeas case asking whether a court’s dismissal “for lack of merit in the grounds presented” meant that it had adjudicated the claim on the merits for purposes of AEDPA. Unger v. Young, 13-95, yet another state-on-top habeas case (this time from the Second Circuit), concerns a whole slew of habeas fun, but in the main asks whether the state can forfeit application of the old rule from Stone v. Powell that Fourth Amendment claims won’t be addressed on habeas absent a showing that the petitioner was denied a full and fair opportunity to litigate the issue in state court.

In the fine Fifth Circuit tradition, Sepulvado v. Cain, 12-10251, is a state-on-bottom petition. Mr. Sepulvado asked that his case be held for Trevino v. Thaler, which was decided soon after his petition was filed. Trevino held that procedural default rules do not apply if a state’s procedural framework makes it highly unlikely that a defendant will have a meaningful chance to raise an ineffective-assistance claim on direct appeal. Sepulvado claims that the Louisiana courts trigger that rule, at least for capital defendants like him. Maybe the Court is pondering whether to grant, vacate, and remand in light of Trevino, or whether it might need more information? Our final relist comes from a state that always avoids judicial controversy: Freddie Lee Hall v. Florida, 12-10882, concerns the ability of states to fashion their own definitions of what constitutes mental retardation under Adkins v. Virginia.

That’s all for now. Assuming the Justices can vault a shutdown barricade or two, we’ll be back here next week with another exciting edition of Relist Watch!

Thanks to Eric White and Conor McEvily for compiling and drafting this update.

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