At its October 26, 2012 Conference, the Court will consider such issues as the Confrontation Clause treatment of trial testimony by anonymous witnesses, Texas’s assessment of mental retardation, disparate impact claims and the Fair Housing Act, the “actual innocence” exception to AEDPA’s timely filing requirement, and the constitutionality of Section 5 of the Voting Rights Act.

This edition of “Petitions to watch” features 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.

Velasquez-Otero v. Holder

Docket: 11-1321
Issue(s): Whether the Board of Immigration Appeals’ unexplained addition of the social visibility requirement for asylum -- that those seeking asylum based on “membership in a particular social group” prove that their claimed groups are socially visible -- under 8 U.S.C. § 1101(a)(42)(A) is arbitrary or capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), or unreasonable under Chevron U.S.A. Inc. v. Natural Res. Def. Council.

Certiorari stage documents:

Nitro-Lift Technologies, L.L.C. v. Howard

Docket: 11-1377
Issue(s): Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and forty-five years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).

Certiorari stage documents:

Elashi v. United States

Docket: 11-1390
Issue(s): (1) Whether or under what circumstances the Confrontation Clause permits the prosecution to present trial testimony from an anonymous witness; and (2) whether the co-conspirator exception to the hearsay rule, Federal Rule of Evidence 801(d)(2)(E), extends to out-of-court statements in furtherance of a lawful joint venture.

Certiorari stage documents:

Chester v. Thaler

Docket: 11-1391
Issue(s): Whether Texas’s use of the In re Briseno factors -- under which Texas assesses mental retardation using seven factors invented by the state court that rely heavily on the facts of the crime, have no basis in scientific literature, and conflict with the nationally accepted clinical definition of mental retardation relied on in Atkins v. Virginia -- is contrary to or an unreasonable application of Atkins v. Virginia, where these non-clinical criteria depart from the national consensus definition of mental retardation, are unrelated to a reliable determination of mental retardation, and permit the execution of mentally retarded offenders.

Certiorari stage documents:

Delling v. Idaho

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.
Docket: 11-1515
Issue(s): Whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases, an issue this Court reserved in Clark v. Arizona, footnote 20.

Certiorari stage documents:

Bullock v. BankChampaign, N.A. (Granted )

Docket: 11-1518
Issue(s): What degree of misconduct by a trustee constitutes “defalcation” under § 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Certiorari stage documents:

Gaitan v. Holder

Docket: 11-1525
Issue(s): Whether, for purposes of the Immigration and Nationality Act, under which a non-citizen can qualify as a “refugee” (and therefore be eligible for asylum) if he is unwilling or unable to return to his country of origin “because of . . . a well-founded fear of persecution on account of . . . membership in a particular social group,” the Board of Immigration Appeals' new definition of “particular social group” – which requires those seeking asylum to prove that their group possesses “social visibility” and “particularity” – is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), or unreasonable under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc..

Certiorari stage documents:

PPL Corp. and Subsidiaries v. Commissioner of Internal Revenue (Granted )

Docket: 12-43
Issue(s): Whether, in determining the creditability of a foreign tax, courts should employ a formalistic approach that looks solely at the form of the foreign tax statute and ignores how the tax actually operates, or should employ a substance-based approach that considers factors such as the practical operation and intended effect of the foreign tax.

Certiorari stage documents:

Nix v. Holder

Docket: 12-81
Issue(s): (1) Whether the 2006 version of Section 5 of the Voting Rights Act of 1965 exceeds Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments given that: (a) Congress retained a three-decade-old formula for selecting the jurisdictions that will be covered by the preclearance procedure; and (b) Congress significantly expanded the substantive standard for denying preclearance by abrogating two of the Court’s decisions that had narrowly construed it; (2) whether the Justice Department mooted petitioners’ appeal when it unilaterally purported to “reconsider” and “withdraw” the particular preclearance objection that was injuring petitioners, but failed to demonstrate that Section 5 could not reasonably be expected to injure petitioners in the future.

Certiorari stage documents:

Shelby County v. Holder (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case.
Docket: 12-96
Issue(s): Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Certiorari stage documents:

Unite Here Local 355 v. Mulhall (Granted )

Docket: 12-99
Issue(s): Whether an employer and union may violate Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business.

Certiorari stage documents:

Sidamon-Eristoff v. New Jersey Food Council

Docket: 12-108
Issue(s): Whether federal common law preempts a state from assuming temporary custody of unclaimed property arising within its borders that the rightful owner has not claimed and no other state seeks to escheat.

Certiorari stage documents:

McQuiggin v. Perkins (Granted )

Docket: 12-126
Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

Certiorari stage documents:

RBS Citizens, N.A. v. Ross

Docket: 12-165
Issue(s): (1) Whether it is consistent with Wal-Mart Stores, Inc. v. Dukes to hold that a defendant to a Federal Rule of Civil Procedure 23(b)(3) class action has no right to raise statutory affirmative defenses on an individual basis if the classseeks “only” monetary relief; and (2) whether a district court can conclude that the Rule 23(a)(2) commonality requirement is satisfied when a class claims the denial of overtime pay, without resolving whether dissimilarities in the class would preclude it from establishing liability on a class-wide basis.

Certiorari stage documents:

Lefemine v. Wideman

Docket: 12-168
Issue(s): (1) Whether the Fourth Circuit erred when it rejected the rule of Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources by holding that a plaintiff who has obtained a permanent injunction and declaratory relief on the merits of his claim has nonetheless not prevailed; and (2) whether the Fourth Circuit erred when it promulgated its new rule that the determination of whether a plaintiff has prevailed will now be subject to abuse of discretion review.

Certiorari stage documents:

John Hancock Life Insurance Company (U.S.A.) v. Santomenno

Docket: 12-202
Issue(s): Whether a participant in an employee benefit plan governed by ERISA may commence and control litigation on the plan’s behalf against a service provider hired by a plan administrator or trustee without first presenting the plan’s claim to the administrator or trustee.

Certiorari stage documents:

 

Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of October 26, 2012, SCOTUSblog (Oct. 23, 2012, 5:25 PM), http://www.scotusblog.com/2012/10/petitions-to-watch-conference-of-october-26-2012/