Supreme Court Relist Watch

A couple of important apparent relists today.

First, a closely watched labor class action case: Wal-Mart v. Dukes, 10-277, from the en banc Ninth Circuit (over dissents by Kozinski and Ikuta), presents the questions (1) whether (and under what circumstances) claims for monetary relief can be certified under Fed. R. Civ. P. 23(b)(2), which petitioners argue is by its terms limited to injunctive or corresponding declaratory relief; (2) whether the lower court’s order certifying a class conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Rule 23.

Second, a Medicare case, Maxwell-Jolly v. Santa Rosa Memorial Hospital, 10-283, also from the Ninth Circuit, involving whether Medicaid providers may maintain a cause of action to enforce 42 U.S.C. § 1396a(a)(3)(A) by asserting that the provision preempts a state law that reduces reimbursement rates.  (UPDATE: This is almost certainly being held for the CVSG in Maxwell Jolly v. Independent Living Center, No. 09-958, which has been pending since 5/24.) 

Third, a federal capital case from the Fifth Circuit, Webster v. United States, 10-150, which presents questions about whether the Supreme Court has certiorari jurisdiction to review the court of appeals’ denial of a request for authorization to file a second or successive collateral attack under 28 U.S.C. § 2255.  Because Congress purported to eliminate certiorari review of denials of authorization to file a second or successive collateral attack, and “jurisdiction-stripping” statutes are always controversial, I suspect one or more Justices is preparing a dissent from denial of cert.   Or perhaps someone is penning a concurrence in denial, noting the SG’s concessions in its brief in opposition (see p17) about the various mechanisms petitioner still has for review of his claims by the Supreme Court.

Those are the relists among the cases I have been watching. Anyone aware of any others?

Finally, it looks like the hardy perennials Beer, Alderman v. US, Williams v. Hobbs, and Allen v. Lawhorn , discussed here, here, and here, have been relisted once again. The Court has had the record in Allen v. Lawhorn for over a month, so it is about time for a summary reversal (or a dissent from denial of cert at least) to be forthcoming.

Harper v. Maverick, a relist noted last time, turned into Justice Alito’s dissent from denial of cert issued today.   In other news, Gamache v. California, 10-5196, which was the subject of Justice Sotomayor’s second opinion respecting denial of cert of the term today (the first was denominated a dissent), had been relisted six times (and the record requested after the third relist).  Both Sotomayor and Alito each have two opinions respecting denial of cert this term (mostly dissents); and Justice Ginsburg has one that Sotomayor joined.