At its January 4, 2013 Conference, the Court will consider petitions seeking review of issues such as the authority of the U.S. Court of Appeals for Veterans Claims, the Interstate Agreement on Detainers Act, the definition of “hot pursuit,” and rights under the Labor-Management Relations 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.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or 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 represents the respondent(s) but does not appear on the briefs in the case.

11-798

Issue: Whether 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property,” contains an unexpressed “market participant” exception and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services.

 

11-889
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents the City of Dallas as amicus curiae in this case.

Issue: (1) Whether Congress’s approval of an interstate water compact that grants the contracting states “equal rights” to certain surface water and – using language present in almost all such compacts— provides that the compact shall not “be deemed . . . to interfere” with each state’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact,” manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water; and (2) whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact.

 

11-1154

Issue: (1) Whether a court may depart from the plain and ordinary meaning of a term in a patent claim based on language in the patent specification, where the patentee has neither expressly disavowed the plain meaning of the claim term nor expressly defined the term in a way that differs from its plain meaning; and (2) whether claim construction, including underlying factual issues that are integral to claim construction, is a purely legal question subject to de novo review on appeal.

 

11-1278

Issue: (1) Whether the Federal Circuit’s construction of the “lodging” limitation should be reversed because, at the urging of Retractable Technologies, Inc. (RTI), the Federal Circuit deviated from the term’s clear meaning on far weaker grounds than the court relied on to construe the ambiguous term “body”; (2) whether the Federal Circuit’s construction of the “retainer member” limitation should be reversed because, at RTI’s urging, the Federal Circuit deviated from the term’s clear meaning on far weaker grounds than the court relied on to construe the ambiguous term “body”; and (3) whether the Federal Circuit’s holding that the asserted claims cover devices that work by cutting should be reversed because, at RTI’s urging, the Federal Circuit disregarded a clear disclaimer of claim scope on far weaker grounds than the court relied on to construe the ambiguous term “body.”

 

12-99

Issue: 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.

 

12-117

Issue: (1) Whether a state habeas petitioner who raises a freestanding actual-innocence claim under the Due Process Clause, and who demonstrates actual innocence by at least a preponderance of the evidence, must instead make that showing by clear and convincing evidence to warrant a new trial; and (2) whether, in light of trial counsel’s errors, petitioner received ineffective assistance of counsel in violation of Strickland v. Washington.

 

12-140

Issue: (1) Whether the hot pursuit exception to the warrant requirement is contingent on a subjective determination of pursuit; and (2) what constitutes a serious offense for purposes of dispensing with the warrant requirement; and what test or tests is proper to determine when warrantless entry is permissible.

 

12-158

Issue: (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

 

12-167

Issue: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant.

 

12-215

Issue: (1) Whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, the qualified immunity question as to a caseworker who removed a child in an investigation mandated by New York Social Services Law § 424 should be whether a reasonable jury could conclude that the child was not at imminent risk of harm or whether a reasonable caseworker in that particular caseworker’s position could have concluded that the child was; (2) whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, a caseworker is entitled to qualified immunity from suit where five judges of the United States Court of Appeals for the Second Circuit agree that there was an absence of clearly established statutory or constitutional rules of which the caseworker should have been aware when he secured a warrant to search a home and removed children at the direction of his superior; and (3) whether, after removing children from a home under the belief that they were abused, and, thereafter, a state court adjudicates a parent to have been so abusive of his children as to deny him further custody, the parent and the children can sue the caseworker who rescued children from further abuse on either substantive or procedural due process grounds.

 

 

12-223

Issue: Whether, after initiating a custody request for a state prisoner under the Interstate Agreement on Detainers Act, 18 U.S.C. app. 2, the federal government may nullify the state’s exercise of its statutory right to disallow that custody request by resort to a writ of habeas corpus ad prosequendum.

 

12-230
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.

Issue: Whether, when the United States has invoked the Interstate Agreement on Detainers Act and seeks temporary custody of a state prisoner by means of a writ of habeas corpus ad prosequendum, the governor of the sending state – pursuant to the plain language of the Agreement – may disapprove that request.

 

12-276

Issue: Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

 

12-296

Issue: Whether the Ninth Circuit erred in holding that 38 U.S.C. § 511, which provides that the Secretary of Veterans Affairs “shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits,” and that “the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any other court,” precludes the district court’s jurisdiction over systemic challenges to the United States Department of Veterans Affairs’ failures to provide timely medical benefits and to timely resolve claims for service-connected death and disability benefits.

 

12-311

Issue: (1) Whether the Federal Election Commission’s (“FEC”) alternate “expressly advocating” definition at 11 C.F.R. § 100.22(b) is unconstitutionally overbroad, void for vagueness, and contrary to law, facially and as applied to the petitioner's intended activities, because it violates the First and Fifth Amendments of the U.S. Constitution, exceeds statutory authority under the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431 et seq., and should be declared void under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702-06; and (2) whether FEC’s enforcement policy regulating determination of “political committee” (“PAC”) status is unconstitutionally overbroad, void for vagueness, and contrary to law, facially and as applied to the petitioner's intended activities, because it violates the First and Fifth Amendments, exceeds statutory authority under FECA, and should be declared void under APA.

 

12-312

Issue: Whether intangible things can be “deliver[ed]” under Section 302(a)(2) of the Labor Management Relations Act, which makes it unlawful for employers “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization.” 29 U.S.C. § 186(a)(2).

 

12-315
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.

Issue: Whether immunity under the Aviation and Transportation Security Act may be denied without a determination that the air carrier's disclosure was materially false.

 

12-322

Issue: (1) Whether a class may be certified under Federal Rule of Civil Procedure 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf; (2) whether a class may be certified without resolving factual disputes that bear directly on the requirements of Rule 23; and (3) whether a class may be certified without determining whether factual dissimilarities among putative class members give rise to individualized issues that predominate over any common issues.

 

12-330

Issue: Whether 11 U.S.C. § 106 abrogates sovereign immunity for claims of emotional distress damages against the government for violations of the automatic stay under 11 U.S.C. § 362, and the discharge injunction under 11 U.S.C. § 524.

 

12-348

Issue: (1) Whether jury decisions that material is obscene – either obscene for all viewers or just for minors – should be reviewed using the independent appellate review mandated by Bose Corp. v. Consumers Union of U.S., Inc. and Jenkins v. Georgia, as there is a split on this question among state courts of last resort and federal circuit courts; and (2) whether this Court should provide lower courts with a benchmark precedent about what material is “obscene as to minors” or “harmful to minors,” by deciding whether roughly drawn pictures, lacking in sexual content, sent by a father to his wife to be shown to his young child are properly viewed as “obscene as to minors.”

 

12-379

Issue: (1) Whether the Trade Act of 1974 prescribes a deadline for a claimant seeking a training waiver as a prerequisite to obtaining benefits under the Act; and (2) whether a federal agency’s operating instruction, which states are bound to follow by statutory agreement, is entitled to Chevron deference

 

12-382

Issue: Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.

 

12-389

Issue: Whether the U.S. Court of Appeals for Veterans Claims (CAVC) has the authority and responsibility to reverse a denial of benefits where the record is complete and there is no bona fide issue for remand and thus no agency discretion to exercise upon a remand.

 

12-399

Issue: (1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and (2) whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

 

12-414

Issue: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

 

12-444

Issue: (1) Whether, where one or more of the underlying theories of recovery are set aside after trial, a court must vacate the jury’s general verdict (as this Court and five courts of appeals have held) or instead apply a “harmless error” exception (as seven courts of appeals, including the court below, have held); and (2) if such an exception exists, what the standard for determining whether the error is harmless is.

 

12-445

Issue: Whether the proceedings below, in particular the imposition of retroactive liability despite an express statutory proviso that any legal obligation would not arise until the promulgation of regulations that provided the mechanism for compliance, violate the petitioner's constitutional right not to be deprived of property without due process of law.

 

12-454

Issue: (1) Whether the court of appeals erred in holding that an Executive Order can and did excuse an agency’s failure to comply with the Administrative Procedure Act; and (2) whether the court of appeals erred in holding that a preliminary-injunction ruling is binding law of the case, contrary to this Court’s settled rule that “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits,” University of Texas v. Camenisch.

 

12-496

Issue: (1) Whether the district court erred and exacerbated the constitutional difficulties with Section 5 of the Voting Rights Act of 1965 by requiring Texas to increase the number of majority-minority congressional districts in response to population growth, by treating “coalition” and “crossover” districts as protected under Section 5, and by applying a “functional” definition of retrogression that fails to give covered jurisdictions fair notice of the redistricting decisions that will be deemed to violate Section 5; (2) whether the district court erred and exacerbated the constitutional difficulties with Section 5 by finding a discriminatory purpose under the new permissive standard adopted by Congress in the 2006 reauthorization in attempting to abrogate this Court’s decision in Reno v. Bossier Parish School Bd.; (3) whether the district court erred and exacerbated the constitutional difficulties with Section 5 by allowing private intervenors to challenge the Texas Senate map, even though the Department of Justice conceded that this map was entitled to preclearance; and (4) whether the 2006 reauthorization of Section 5, as so construed, is constitutional, to the extent that the district court did not err in construing Section 5.

 

12-515

Issue: (1) Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

 

12-532

Issue: Whether a plaintiff can maintain a cause of action for employment discrimination under 42 U.S.C.A. § 1983, when she would be barred from maintaining an action based on the same facts under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972.

 

12-563

Issue: Whether the Sixth Circuit correctly held – in agreement with four of its sister circuits, and in conflict with eight others – that a jury's general civil verdict cannot stand where one factual basis for the verdict is supported by sufficient evidence but another is not.

Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of January 4, 2013, SCOTUSblog (Dec. 31, 2012, 10:47 PM), http://www.scotusblog.com/2012/12/petitions-to-watch-conference-of-january-4-2013/