At its September 30, 2013 Conference, the Court will consider petitions seeking review of issues such as the termination of parental rights under the Indian Child Welfare Act, the constitutionality of Virginia’s “crimes against nature” statute, protections on free speech interests of government employees, and a free exercise challenge to workers’ compensation requirements.
This is our third of three installments of “Petitions to watch” for the September 30 Conference. (Earlier installments are here and here). We feature petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell, P.C. represents the respondent(s) but does not appear on the briefs in the case.
Philip Morris USA Inc. v. Douglas
13-191
Issue: Whether the Due Process
Clause is violated by the Florida Supreme
Court’s new rule of preclusion, which permits Engle v. Liggett Group, Inc.
class members to establish petitioners’ liability without
being required to prove essential elements of
their claims or establishing that those elements were
actually decided in their favor in a prior proceeding.
White v. Baptist Memorial Health Care Corporation
13-107
Issue: Whether, under the Fair Labor Standards Act of 1938, an employer may escape liability for unpaid time worked based on an employee’s failure to formally report extra work time, when the employer knew or should have known that the employee had worked during that time.
Hartman v. Moore
13-103
Issue: Whether law-enforcement agents accused of retaliatory
prosecution in violation of the First Amendment
should receive qualified immunity where the officers
could reasonably have believed that the prosecution was
supported by probable cause.
Unger v. Young
13-95
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.
Sun Life and Health Insurance Company v. Hannington
13-92
Issue: Whether
there can be an exception to the deferential arbitrary
and capricious standard of review not previously
recognized by this Court when an ERISA plan fiduciary interprets
plan terms which refer to outside materials.
Patterson v. Adkins
13-85
Issue: Whether, when a state court cites and applies the correct standard from Batson v. Kentucky for assessing whether a habeas petitioner has established discrimination in jury selection, the state court’s failure to expressly address “all relevant circumstances” in a written opinion means that the state court’s decision is “unreasonable” and entitled to no deference under the Antiterrorism and Effective Death Penalty Act.
Brennan v. Concord EFS, Inc.
13-63
Issue: Whether a plaintiff who purchases directly from a
member of a price-fixing conspiracy is necessarily a “direct
purchaser” under Illinois Brick Co. v. Illinois(as the Third and
Seventh Circuits have held), or whether instead the
plaintiff must show that the conspirators agreed to set
the specific price the plaintiff paid and not merely that
the conspiracy inflated that price by anticompetitive
means (as the Ninth Circuit held below).
Toll Bros., Inc. v. Noohi
13-55
Issue: Whether the Federal Arbitration Act preempts a state-law rule invalidating arbitration provisions, but not contracts more generally, that lack mutuality of obligation.
Maersk Drilling USA, Inc. v. Transocean Offshore Deepwater Drilling, Inc.
13-43
Issue: Whether offering, negotiating, and entering into
a contract in Scandinavia to provide services using a
potentially patented device constitutes an “offer to
sell” or “sale” of an actually patented device “within
the United States,” under 35 U.S.C. § 271(a).
von Drehle Corporation v. Georgia Pacific Consumer Products, LP
13-41
Issue: Whether the court of appeals erred in refusing to follow the holdings of the Eighth and Sixth Circuits involving identical trademark litigation and not giving those rulings preclusive effect – and doing so in ways that disregard the district courts’ inherent authority to consider preclusion and do serious violence to Federal Rule of Civil Procedure 15 and the proper standards other circuits routinely follow when reviewing decisions to permit amendments of pleadings.
Andochick v. Byrd
13-29
Issue: Whether ERISA’s statutory protections and
broad preemption provision protect designated
beneficiaries from claims by an estate to enforce a
purported waiver of those benefits incorporated into
a state law divorce decree and property settlement
agreement when the deceased plan participant had
the opportunity to change her designated beneficiary
but did not do so.
Campbell v. The Hanover Insurance Company
13-16
Issue: (1) Whether a party asserting a “new value” defense
to a preference claim pursuant to 11 U.S.C. §
547(c)(1) must prove the specific value “in money or
money’s worth” of the assets transferred to the
debtor, as the Third, Fifth, Ninth, Tenth and
Eleventh Circuits have held, or a mere
approximation of value, as the Fourth Circuit below
and the Eighth Circuit, as well as inconsistent Third
and Tenth Circuit decisions, have held.
Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter
12-1497
Issue: (1) Whether the Wartime Suspension of Limitations
Act – a criminal code provision that tolls the
statute of limitations for “any offense” involving fraud
against the government “[w]hen the United States is
at war,” 18 U.S.C. § 3287, and which this Court has
instructed must be “narrowly construed” in favor of
repose – applies to claims of civil fraud brought by
private relators, and is triggered without a formal
declaration of war, in a manner that leads to indefinite
tolling; and (2) whether, contrary to the conclusion of numerous
courts, the False Claims Act’s so-called “first-to-file”
bar, 31 U.S.C. § 3730(b)(5) – which creates a race
to the courthouse to reward relators who promptly
disclose fraud against the government, while prohibiting
repetitive, parasitic claims – functions as a “onecase-
at-a-time” rule allowing an infinite series of duplicative
claims so long as no prior claim is pending
at the time of filing.
Abramski v. United States
12-1493
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).
Moose v. MacDonald
12-1490
Issue: Whether the Virginia courts unreasonably applied Lawrence v. Texas in
determining that Virginia’s “crimes against nature” statute
is not facially unconstitutional or unconstitutional as
applied to an adult male’s solicitation of a minor female,
outside the home, to perform oral sodomy.
Luminant Generation Company LLC v. Environmental Protection Agency
12-1484
Issue: (1) Whether, contrary to 42 U.S.C. § 7410’s express limit on the
EPA’s disapproval authority and decisions of other
courts of appeals, the EPA may substitute its own
policy preferences for a state’s about the appropriate
means of controlling air pollution within that state,
without identifying any applicable “requirement of
th[e] [Clean Air Act]” with which the state’s chosen means
would interfere; and (2) whether the panel erred under SEC v. Chenery Corp., by upholding agency action
based on, and by purporting to “defer” to, an interpretation
of the Clean Air Act that the EPA itself not only never
adopted – but in fact expressly rejected.
Rapelje v. McClellan
12-1480
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.
Ryan v. Hurles
12-1472
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.
Ring v. United States
12-1462
Issue: (1) Whether a defendant can be convicted of the offense
of honest-services-fraud-by-bribery as defined
in this Court’s decision in United States v. Skilling, in the absence of a quid pro
quo bribery agreement; and
(2) whether the First Amendment permits jurors to
consider evidence of a lobbyist’s legal campaign
contributions, permissibly made to express appreciation
toward and provide election assistance to
political officials, as probative of whether the lobbyist
engaged in corruption by putting other things of
value to similar use.
AMAG Pharmaceuticals, Inc. v. Silverstrand Instruments
12-1457
Issue: Whether, in order to survive a motion to dismiss, a plaintiff asserting a claim under Section 11 of the Securities Act of 1933 premised on an alleged violation of SEC regulations must plead facts establishing that the allegedly omitted information is material under Basic Inc. v. Levinson and Matrixx Inc. v. Siracusano.
Norfolk Southern Corporation v. Zimmerman
12-1448
Issue: (1) Whether 23 U.S.C. § 409, which prohibits the
evidentiary use of reports “compiled or collected for
the purpose of identifying, evaluating or planning”
safety enhancements “pursuant to” three federal
highway programs, bars the admission of National
Crossing Inventory reports and railroad accident
reports collected from railroads by the Federal
Railroad Administration for the purpose of
identifying railroad crossings in need of safety
enhancements; and (2) whether 49 U.S.C. § 20903, which prohibits
the evidentiary use of a federally mandated railroad
accident report in an action “for damages resulting
from a matter mentioned in the report,” bars the
admission of reports of accidents at a railroad
crossing in a tort suit arising out of an accident at the
crossing.
Bakoss v. Certain Underwriters at Lloyd’s of London Issuing Certificate No. 0510135
12-1429
Issue: (1) Whether, by electing not to define the term “arbitration,”
Congress evinced an intent to respect relevant
state-law definitions of “arbitration,” so long as
applying them would not undermine the Federal Arbitration Act’s policy
goals; and (2) whether, if it is proper to disregard relevant state-law
definitions of “arbitration” in favor of one created by
federal judges, that definition should exclude alternative dispute resolution
that does not necessarily (a) resolve the plaintiff’s
entire cause of action (b) through an adversarial process.
Dixon v. University of Toledo
12-1402
Issue: (1) Whether the policymaker exception analysis from Elrod v. Burns and Branti v. Finkel
should apply to employee speech cases that do not
involve political patronage; and (2) whether a presumption in favor of protecting
the free speech interests of a government employee should apply in
a case not involving political patronage and where the
employee is speaking as a private citizen on a matter of
public concern and the speech does not directly criticize
her employer or any identified policy of her employer.
American Electric Power Service Corporation v. Federal Communications Commission
12-1396
Issue: (1) Whether Congress, by expressly excluding incumbent local exchange carriers
(ILECs) from the Pole Attachments Act’s
definition of “telecommunications carrier,” intended to exclude attachments by ILECs to the poles of other utilities from the protections of the
Act; and (2) whether the FCC provided a reasoned
justification for re-interpreting the Pole
Attachments Act to extend its protections to
attachments by ILECs to the poles of other
utilities.
Peppin v. Minnesota Commissioner of Public Safety
12-1395
Issue: Whether when an officer informs a driver that “refusal to
submit to a test is a crime,” a driver's
acquiescence to the officer's demand to conduct a
warrantless search and seizure of the driver's urine
qualifies as constitutionally valid consent, as a
matter of law.
United States v. Castleman
12-1371
Issue: Whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).
Underwood v. Harkins
12-1367
Issue: Whether the First
Amendment prohibits a government official from
dismissing an employee for lack of political allegiance
when political allegiance would be an appropriate
requirement for the employee’s statutory or formal
job description but not for the job the employee actually
performs.
Evans v. City of Durham
12-1363
Issue: Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the prosecutor's subsequent decision to use the evidence.
American Beverage Association v. Snyder
12-1344
Issue: Whether Michigan’s restrictions on beverage sales unconstitutionally discriminate against interstate commerce because they preclude the sale of an interstate product within Michigan solely because that product is sold in other states, and burden only companies that engage in business in more than one state.
Ray v. OSU Student Alliance
12-1296
Issue: Whether 42 U.S.C. § 1983 requires that a government official
have engaged in conduct that caused a constitutional
violation, or can that official be held liable simply
because he learned that a subordinate violated a
constitutional right and did not take action in response.
New Mexico v. Navarette
12-1256
Issue: (1) Whether the Confrontation Clause prohibits a chief medical investigator from testifying about objective facts in an autopsy report earlier by another medical examiner when the report was not admitted into evidence, was not certified or sworn, and was not prepared for the primary purposes of accusing the targeted individual of a crime or of providing evidence at a criminal trial; (2) whether the definition of the constitutional term "witnesses" in Crawford v. Washington should be overruled or modified; and (3) whether any constitutional error in the admission of an out-of-court statement is harmless beyond a reasonable doubt when it is more beneficial to the defense than the state, a testifying expert was available for cross examination about the statement, and the evidence of guilt was overwhelming.
Michigan Beer & Wine Wholesalers Association v. American Beverage Association
12-1224
Issue: (1) Whether the extraterritorial branch of the dormant Commerce Clause doctrine should be limited to the price-affirmation and anti-takeover contexts, or abolished entirely as a stand-alone test; and (2) whether the extraterritorial branch of the dormant Commerce Clause doctrine extends to a nondiscriminatory statute that is focused on in-state activity in order to prevent fraud occurring in the enacting state.
Snyder v. American Beverage Association
12-1221
Issue: (1) Whether the extraterritorial branch of the dormant Commerce Clause doctrine should be limited to the price-affirmation and anti-takeover contexts; (2) whether the extraterritorial doctrine should be abolished entirely; and (3) whether a state statute's extraterritorial effect should result in the law’s per se invalidity.
Folino v. Johnson
12-1218
Issue: (1) Whether the United States Court of Appeals
for the Third Circuit and other courts of
appeals which have interpreted the
materiality standard of Brady v. Maryland to include evidence
inadmissible at trial if such material could
have led to the discovery of admissible
evidence have expanded the scope of Brady
in a manner contrary to Wood v. Bartholomew, and, in so
doing, have substituted mere admissibility
for the requirement that to be "material"
undisclosed evidence must present a
"reasonable probability" that the result of
the trial would have been different had the
evidence been disclosed, and in a manner
which, in the instant case, would have
required the prosecution to search the entire
universe of police reports to find those
reports which referenced, but did not charge,
a prosecution witness; (2) whether the United States Court of Appeals
for the Third Circuit, by directing the
district court to evaluate Johnson's claim
"in light of the Third Circuit opinion," has
required the district court to accept
characterizations of the allegedly suppressed
evidence which in some instances are
contrary to this Court's teachings, such as
the weight to be given affidavits solicited by
habeas counsel long after the verdict was
obtained, and which, in other instances, are
factually inaccurate.
Stanton v. Sims
12-1217
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.
Big Sky Colony, Inc. v. Montana Department of Labor & Industry
12-1191
Issue: (1) Whether the Free Exercise Clause requires a
plaintiff to demonstrate that the challenged law singles
out religious conduct or has a discriminatory motive,
as the First, Second, Fourth, and Eighth Circuits
and Montana Supreme Court have held, or
whether it is instead sufficient to demonstrate that
the challenged law treats a substantial category of
nonreligious conduct more favorably than religious
conduct, as the Third, Sixth, Tenth, and Eleventh
Circuits and Iowa Supreme Court have held; and (2) whether the government regulates “an internal
church decision” in violation of the Free Exercise
Clause, Hosanna Tabor v. EEOC,
when it forces a religious community to provide
workers’ compensation insurance to its members in
violation of the internal rules governing the community
and its members.
Marvin M. Brandt Irrevocable Trust v. United States
12-1173
Issue: Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right-of-Way Act of 1875 rights-of-way after the underlying lands were patented into private ownership.
Craig v. United States
12-1046
Issue: Whether, when the government lawfully seizes an individual’s cash property and is later required by law to return it, it may refuse to return interest.
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