At its January 11, 2013 Conference, the Court will consider petitions seeking review of issues such as efforts by the Republican National Committee to terminate a consent decree, the interpretation of the Securities Litigation Uniform Standards Act, and the scope of the Fifth Amendment’s Self-Incrimination Clause.

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.

12-373

Issue: (1) Whether the United States Court of Appeals for the Third Circuit misinterpreted United States v. Munsingwear, and thus improperly relied on the district court’s factual findings and legal rulings in an earlier case that was vacated as moot while on appeal, even though other courts of appeals have interpreted Munsingwear as rendering a vacated decision a nullity, as if it the case had never been filed, and draining its factual findings of all vitality; (2) whether the United States Court of Appeals for the Third Circuit misconstrued Rule 60(b)(5) of the Federal Rules of Civil Procedure, as this Court has interpreted that rule in Board of Education of Oklahoma City Public Schools v. Dowell and Rufo v. Inmates of Suffolk County Jail by deeming substantial compliance with a consent decree over more than two decades insufficient to justify termination, even though other courts of appeals have held that the defendant’s good faith and substantial compliance with a decree over a long period of time is a ground, standing alone, for terminating the decree; and (3) whether the United States Court of Appeals for the Third Circuit misconstrued Rule 60(b)(5) by affirming the district court’s unilateral expansion of the decree, even though other courts of appeals have held that the rule does not authorize a court to increase the obligations imposed by a decree.

 

12-10

Issue: Whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment. (Kagan, J., recused.)

 

12-418

Issue: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

 

12-410

Issue: Whether, to establish liability under the Federal Employer’s Liability Act (“FELA,” 45 U.S.C. § 51, et seq.) a plaintiff must prove that a co-employee’s specific negligent act was intended to further the employer’s business.

 

12-462

Issue: Whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens ) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

 

12-470

Issue: (1) Whether 42 U.S.C. § 1396p(d)(4) imposes a mandatory obligation on states to exclude certain trusts from eligibility determinations, such that Medicaid recipients and their trusts may pursue a private cause of action to enforce this provision; and (2) whether recipients and their trusts may maintain such an action under the Constitution’s Supremacy Clause by asserting that Section 1396p(d)(4) preempts a state law that requires that these trusts be counted.obligation on states to exclude certain trusts from eligibility determinations, such that Medicaid recipients and their trusts may pursue a private cause of action to enforce this provision. 2. Whether recipients and their trusts maintain such an action under the Constitution’s Supremacy Clause by asserting that § 1396p(d)(4) preempts a state law that requires that these trusts be counted.

 

12-477

Issue: (1) Whether the decision below conflicts with this Court’s precedents and the decisions of other circuits holding that, when state claims are barred in state court, they are barred in federal court under the Erie doctrine; and (2) whether the decision below conflicts with this Court’s precedents and the decisions of other circuits holding that the filed-rate doctrine bars (a) claims challenging a regulated utility’s rates or practices as unreasonable or discriminatory and (b) claims that would effectively allow the plaintiff to pay a lower rate than the filed rate.

 

12-484

Issue: Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

 

12-565

Issue: (1) Whether assets which a Medicaid recipient divested during her lifetime fall within that individual’s “estate” as defined in 42 U.S.C. § 1396p(b)(4); and (2) if not, whether 42 U.S.C. § 1396p(b)(4) preempts Idaho statutes and regulations that authorize the Idaho Department of Health and Welfare to assert Medicaid recovery claims against assets in which the Medicaid recipient did not have any legal title to or interest in at the time of the recipient’s death.

 

The following cases have been relisted from previous conferences:

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.

 

12-382

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.

 

12-312

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).

 

12-99

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.

 

12-246
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the co-counsel to the petitioner in this case.

Issue: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

 

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.

 

12-223

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.

 

12-215

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.

 

12-158

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.

 

11-1536

Issue: Whether the sentencing terms of 18 U.S.C. §§ 924(c)(1)(A) (i)-(iii) constitute escalating, fixed sentences, or instead mere minimum sentences with implicit maximums of life in prison.

 

11-1221

Issue: Whether 5 U.S.C. § 8705(a), any other provision of the Federal Employees Group Life Insurance Act of 1954 (FEGLIA), or any regulation promulgated thereunder preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of FEGLI insurance proceeds after they have been distributed.

 

11-1078

Issue: Whether the Federal Circuit’s interpretation of 35 U.S.C. § 271(e)(1)’s safe harbor from patent infringement liability for drugs – an interpretation which arbitrarily restricts the safe harbor to pre-marketing approval of generic counterparts – is faithful to statutory text that contains no such limitation and decisions of this Court rejecting similar efforts to impose extra-textual limitations on the statute.

 

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.

 

 

Posted in Cases in the Pipeline

Recommended Citation: Kali Borkoski, Petitions to watch | Conference of January 11, 2013, SCOTUSblog (Jan. 10, 2013, 3:03 PM), http://www.scotusblog.com/2013/01/petitions-to-watch-conference-of-january-11-2013-2/