Relist Watch

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 Timesbuying 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 controversyFreddie 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.


Issue: (1) Whether Massachusetts v. EPA compelled the EPA to include greenhouse gases in the Clean Air Act’s Title I prevention of significant deterioration (PSD) and Title V stationary-source permitting programs when inclusion of greenhouse gases would (i) transform the size and scope of these programs into something that the EPA found would be “unrecognizable to . . . Congress,” and (ii) expand the PSD program to cover a substance that does not deteriorate the quality of the air that people breathe; and (2) whether dismissal of the petitions to review the EPA’s greenhouse gas permit-program rules was inconsistent with this Court’s standing jurisprudence where the panel premised its holding that standing was absent on its merits holding that greenhouse gases are regulated pursuant to automatic operation of the Clean Air Act.

(relisted after the September 30 Conference)


Issue: (1) Whether Virginia and other petitioners below demonstrated
that there was evidence of central relevance
to the EPA’s Endangerment Finding not
available during the comment period such that
the Administrator was obligated to convene a
proceeding for reconsideration with procedural
rights of notice and comment; (2) whether the EPA correctly applied the standard for
demonstrating central relevance; (3) whether the EPA erred when it found the objections
material enough to require resort to extensive
new evidence outside of the record while denying
the rights of notice and comment on that evidence; and (4) whether the EPA erred initially and on Petition for
Reconsideration by delegating its Statutory Authority
to outside entities.

(relisted after the September 30 Conference)


Issue: Whether the EPA’s regulation determining that carbon dioxide and related substances pose a danger to human health and welfare must be set aside because the EPA violated the congressional mandate to submit the proposed endangerment finding to the Science Advisory Board for peer review, as required by 42 U.S.C. § 4365(c)(1).

(relisted after the September 30 Conference)


Issue: Whether the EPA properly interpreted Part C of the Clean Air Act, requiring a pre-construction permit for a “major emitting facility . . . in any area to which this part applies,” 42 U.S.C. § 7475(a)(1), to apply to facilities emitting “any regulated air pollutant,” when the EPA’s interpretation concededly produces absurd results, requiring (in the agency’s view) that it rewrite separate statutory thresholds, and when an alternative construction—applying the provision only to sources of National Ambient Air Quality Standards (NAAQS) pollutants subject to Part C—would avoid those results and would not require rewriting the statute.

(relisted after the September 30 Conference)


Issue: Whether the Clean Air Act and this Court’s
decision in Massachusetts v. EPA prohibit the Environmental Protection Agency from considering
whether regulations addressing greenhouse gases
under Section 202 of the Act would meaningfully mitigate the risks identified as the basis for their adoption.

(relisted after the September 30 Conference)


Issue: (1) Whether the Court of Appeals erred in determining
that regulating stationary-source greenhouse-gas
emissions under the Clean Air Act’s Prevention of
Significant Deterioration (PSD) program, and an associated program known as “Title V,” is statutorily required
as a matter of a Chevron “step-one” legislative command; (2) whether, in determining that the Clean Air Act
unambiguously requires application of the PSD
program to greenhouse gases, the Court of Appeals
and the EPA ignored required elements of statutory
construction in cases of this type by failing to examine
whether the various statutory components of that
program were contradicted, nullified, or otherwise
contravened by application to greenhouse gases, and,
further, without considering whether alternative
mechanisms exist for regulating stationary-source
greenhouse-gas emissions under the Act that better
serve the statute’s dual concerns with the economy
and the environment; and (3) whether a claimant may be barred from asserting a claim that applying the PSD program to greenhouse gases is not authorized by the Act because the claimant, or other large emitters of conventional pollutants, did not assert that claim at the time EPA promulgated decades-old regulations that involved conventional pollutants only, when, first, the claim at issue is uniquely and entirely limited to the application of the statute to greenhouse gases, and, second, the Agency, in any event, itself has modified the regulations to reflect a unique greenhouse-gas-specific definition of the key statutory term.

(relisted after the September 30 Conference)


Issue: (1) Whether the EPA may exert authority over greenhouse gas emissions under the Clean Air Act where (a) the EPA
acknowledged that its interpretation of the Act is
fundamentally inconsistent with both the express
terms of the Act and the manifest intent of Congress
and would lead to results that are “absurd” and
“impossible” to administer, (b) there exist reasonable
alternative interpretations of the Act that do not
create such conflicts and absurd results, and (c) the EPA’s action was based on an irrational claim of scientific certainty in the face of ample contradictory and equivocal evidence in the rulemaking record; (2) whether, having adopted an “absurd” and “impossible”
interpretation of the Act, the EPA may then rewrite the
statutory requirements of the CAA to substitute its
own preferred “tailored” regulatory regime for stationary greenhouse gas emissions in order to avoid the absurd
and impossible results of its own making; and (3) whether the EPA’s administrative “tailoring” of the Act
to avoid the absurd results of its own interpretation is
beyond judicial review on the ground that no party
has standing to challenge the assumed administrative
power to relax statutory requirements.

(relisted after the September 30 Conference)


Issue: (1) (a) Whether the EPA’s Tailoring Rule violates the Clean Air Act by replacing Congress’s unambiguous numerical
permitting thresholds with criteria of the EPA’s own
choosing, and (b) whether the D.C. Circuit improperly
ducked this question on Article III standing grounds; (2) whether Congress authorized the EPA to regulate
greenhouse gas emissions from stationary sources,
given that the Clean Air Act imposes permitting thresholds
that are absurdly low if applied to carbon dioxide; and (3) whether Massachusetts v. EPA should be
reconsidered or overruled in light of the absurd
permitting burdens that follow from treating carbon
dioxide as an air pollutant under the Clean Air Act.

(relisted after the September 30 Conference)


Issue: (1) Whether, once an agency has identified absurd
results produced by its construction of a complex
statutory scheme as a whole, the agency may deem
the identified absurdity irrelevant to the construction
of some individual provisions within the scheme and
a justification for rewriting others; (2) whether the EPA’s determination that greenhouse gases “may reasonably be anticipated to endanger public health or welfare” and otherwise are regulable under Section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1), was “not in accordance with law”
or was “arbitrary, capricious, [and] an abuse of discretion,” § 7607(d)(9)(A); and (3) whether the EPA incorrectly determined that all “air pollutants” regulated by the agency under the Clean Air Act’s motor vehicle emissions provision, 42 U.S.C. § 7421(a)(1), must also be regulated under the
Act’s Prevention of Significant Deterioration of Air
Quality and Title V programs when emitted from stationary sources.

(relisted after the September 30 Conference)


Issue: (1) Whether the “hot pursuit” doctrine articulated
in United States v. Santana applies where police
officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect
fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.

(relisted after the September 30 Conference)


Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(relisted after the September 30 Conference)


Issue: (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and
(2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

(relisted after the September 30 Conference)


Issue: (1) Whether a gun buyer’s intent to sell a firearm to another lawful
buyer in the future a fact is “material to the lawfulness of
the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful
buyer in the future is a piece of information “required . . .
to be kept” by a federally licensed firearm dealer under
Section 924(a)(1)(A).

(relisted after the September 30 Conference)


Issue: (1) Whether, under Martinez v. Ryan,
ineffective assistance of counsel in an initial-review collateral proceeding may provide cause to excuse the procedural default of a claim of ineffective assistance of trial counsel raised in a federal habeas proceeding, and whether reasonable jurists could debate whether a death-sentenced prisoner confined pursuant to a Louisiana judgment may assert ineffective assistance of state post-conviction counsel as cause to excuse procedural defaults of claims of ineffective assistance of trial counsel; (2) whether the U.S. Court of Appeals for the Fifth Circuit erred in denying a certificate of appealability to petitioner in order to determine whether his claims were reviewable under Martinez v. Ryan, where its holding here “that Martinez does not apply to Louisiana prisoners at all” squarely contradicts the Fifth Circuit’s own earlier decision in Lindsey v. Cain?
; and (3) whether, when petitioner was scheduled to be executed in six days, and the district court had transferred petitioner’s case to the Fifth Circuit for lack of jurisdiction, the Fifth Circuit erred in dismissing petitioner’s application for a certificate of appealability (“COA”) due to the district court’s lack of prior consideration of the COA?

(relisted after the September 30 Conference)


Issue: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.

(relisted after the September 30 Conference)


Issue: (1) Whether the state forfeits an argument that Stone v. Powell bars habeas
relief if the state fails to raise Stone in the
district court, or whether Stone announced a
categorical rule that Fourth Amendment
claims are not cognizable on habeas review
absent a showing that the state prisoner was
denied a full and fair opportunity to litigate
the issue in state court; (2) whether the decision of the United States Court
of Appeals for the Second Circuit, in relying
on studies that were not part of the state court
record, conflicts with this Court’s decision in
Cullen v. Pinholster, which held that
habeas review is limited to the record that
was before the state court; and (3) whether the decision of the Second Circuit affords
the state court the deference required by 28
U.S.C § 2254(d), as interpreted by this Court
in Harrington v. Richter.

(relisted after the September 30 Conference)


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