Supreme Court Relist Watch

A bunch of new relists today, and the beat goes on for the group of perennial favorites.

PLIVA, Inc. v. Mensing, 09-993/ Actavis Elizabeth LLC v. Mensing, 09-1039, CA8, present the question whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the statute’s requirement that a generic drug’s labeling be the same as the FDA-approved labeling for the listed (or branded) drug.  The Court CVSG’d, and the SG recommended denial, but the Court needs more time.

Ryan, Dir., Ariz. Dept of Corrections v. Edward Harold Schad, 10-305, CA9, presents the questions (1) Whether, by awarding a defendant an evidentiary hearing on diligence and a simultaneously hearing on the merits, despite his lack of diligence, the Ninth Circuit’s opinion conflicts with Court precedent and the AEDPA; and (2) whether the Ninth Circuit’s opinion conflicts with Court precedent and AEDPA, by remanding the case for an evidentiary hearing without analyzing whether a colorable ineffective assistance of counsel claim was presented or considering the claim on the merits, when the district court considered the claim in light of the new evidence the defendant presented and concluded it showed neither deficient performance nor prejudice.

Talk America Inc v. Michigan Bell Telephone Co., 10-313, CA6, presents the question whether a public service commission was barred from requiring incumbent local exchange carriers (ILECs) to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs’ obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. This is together with . . .

Isiogu v. Michigan Bell Telephone Company, 10-329, CA6, presents the questions (1) whether the Telecommunications Act of 1996 and the Federal Communications Commission’s Triennial Review Remand Order permit incumbent local telephone companies to charge competing telephone companies rates for entrance facilities used for interconnection; and (2) whether the lower court provided the appropriate level of deference to the FCC’s interpretation of its regulations.

Missouri v. Frye, 10-444, Mo. Ct. Appeals, presents the question whether a defendant who validly pleads guilty successfully can assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel’s failure to communicate a plea offer, he would have pleaded guilty with more favorable terms.

Let me know if you are aware of others.

Williams v. Hobbs, 09-10382, which has been relisted seven times, I believe, and which has been much discussed here, was the subject of another of Justice Sotomayor’s dissents from denial of certiorari, which was again joined by Justice Ginsburg.  Webster v. United States, 10-150, relisted last week, was denied without comment today. Wal-Mart v. Dukes, 10-277, also relisted last week, was of course one of today’s two grants.

Other than that, all of the old favorites are back for another week on the hit parade: Alderman v. United States, 09-1555, Beer v. United States, 09-1395, and Allen v. Lawhorn, 10-24. The one wrinkle is that for Beer, alone among all the relists today, the Court’s automated update line just says the case is “pending” without also saying that “an update may be available December 13, 2010 after 10:15am.”

(And thanks to the great Roy Englert for tipping me off to the fact that the Court’s automated phone line is generally more up-to-date than the online docket.  Go figger.)

UPDATE (12/7, 3:24 pm).  I’ve checked the online dockets, and the dockets for all of the above except Schad and Beer  reflect they’ve been relisted for the 12/10 Conference; for both of those cases, the last docket entries simply state that the cases are on for the 12/3 Conference.  My notes from yesterday indicate that the automated recording for Schad indicated that there would be an update available on 12/13, but today, the recorded update for both Schad and Beer simply says they’re “pending,”  and the dockets for both indicate that the cases haven’t been relisted yet.  Curious.