At its March 1, 2013 Conference, the Court will consider petitions seeking review of issues such as implicit exemptions from the Federal Tort Claims Act, waiver in ERISA cases, claims under RICO arising from the depression of immigrant employee wages, and trial counsel performance in capital cases.

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.


Issue(s): Whether the First Amendment allows a state to selectively criminalize defamation of the police, banning defamation expressing anti-police views while permitting knowing false statements expressing pro-police views.


Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioners in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s): Whether allegations that an employer engaged in a pattern of violations of federal immigration laws for the purpose of depressing employee wages can state a claim under Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., as the Second, Sixth, Ninth, and Eleventh Circuits have held; or whether such allegations necessarily fail to state a claim because, as the Fourth Circuit held below, immigration violations cannot be the proximate cause of depressed wages.



Issue(s): (1) Whether, when the state court failed to consider the cumulative prejudicial effect of many, related inadequacies of trial counsel because it unreasonably concluded that one of counsel’s failures did not constitute deficient performance, the federal habeas court should review the prejudice prong of the petitioner’s claim de novo, and without being limited to the state habeas record; and (2) whether the court of appeals’ sua sponte affirmance on the basis of a non-jurisdictional and curable pleading deficiency that was waived by the state is consistent with Wood v. Milyard .


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

Issue(s): (1) Whether due process permits a court to exercise personal jurisdiction over a defendant whose sole “contact” with the forum state is his knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue under 28 U.S.C. § 1391(b)(2) even if the defendant’s alleged acts and omissions all occurred in another district.



Issue(s): (1) Whether the doctrine of waiver applies when an ERISA plan administrator denies a claim for benefits on the ground that the ERISA plan does not provide coverage, and later wants to assert or investigate a ground for denial not stated in the initial denial letter; and (2) whether, if the doctrine of waiver can be applied generally in the above context, it applies in the specific instance where the ERISA plan did not have sufficient facts to have asserted the additional basis for denial when it denied the claim.



Issue(s): Whether a federal habeas court must grant Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) deference to both components of a state court’s merits adjudication of a defendant’s Strickland v. Washington claim, when the state court addressed only one of the components in denying relief.



Issue(s): 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.



Issue(s): Whether, as the First Circuit alone has held, a lawsuit asserting claims arising out of federal employees’ conduct that is tortious is nevertheless implicitly exempt from the Federal Tort Claims Act (“FTCA”), which provides that the United States may be sued and shall be liable for the torts of federal employees acting within the scope of their employment, because the conduct also violates a federal statute, regulation, or policy that does not itself authorize suits for damages.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of March 1, 2013, SCOTUSblog (Feb. 23, 2013, 12:13 PM),