At its May 23, 2013 Conference, the Court will consider petitions seeking review of issues such as the denial of federal funding to health care providers for offering elective abortions, the constitutionality of copyright judge appointment procedures, the reassignment of disabled employees under the Americans with Disabilities Act, and the elements of aiding and abetting in the use of a firearm.

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 Indiana statute that disqualifies a health care provider from participating in a government program because, outside that program and with wholly private funds, it provides abortion care imposes an unconstitutional condition in violation of the Fourteenth Amendment to the United States Constitution.



Issue(s): (1) Whether 42 U.S.C. § 1396a(a)(23)), which provides that state Medicaid plans must allow Medicaid beneficiaries to obtain medical assistance from any qualified provider, creates federal “rights” in Medicaid beneficiaries that may be privately enforced under 42 U.S.C. § 1983 by Medicaid beneficiaries and providers; and (2) whether a state deprives Medicaid beneficiaries of choice among qualified providers under 42 U.S.C. § 1396a(a)(23) by mandating that providers refrain from providing elective abortions as a condition of Medicaid eligibility.



Issue(s): Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint.



Issue(s): (1) Whether the court failed to cure the violation of the Appointments Clause because, despite the judicial revision of 17 U.S.C. § 802(i) to permit the Librarian of Congress to fire Copyright Royalty Judges without cause, Copyright Royalty Judges are principal officers because they retain the power to render a final decision on behalf of the United States; and (2) whether, even if the court’s remedy demoted the judges, it failed to cure the constitutional violation because the Librarian of Congress is not the Head of an Executive Branch Department and thus may not appoint officers of the United States; and (3) whether, even if the remedy chosen by the court cured the constitutional defect, the court nevertheless should have let Congress select the appropriate remedy.



Issue(s): (1) Whether the federal savings bond statute and regulations impliedly preempt longstanding state unclaimed property laws, where the statute and regulations are wholly silent on the treatment of unclaimed bonds and where Congress has expressly preempted state unclaimed property laws in numerous other contexts; and (2) whether application of state unclaimed property laws to unclaimed U.S. savings bonds owned by state residents violates the intergovernmental immunity doctrine, where these laws reflect the states’ exercise of constitutionally reserved escheat power.



Issue(s): Whether the citizenship of the persons on whose behalf monetary relief claims are brought by a state may satisfy the Class Action Fairness Act's minimal diversity requirement as set forth in 28 U.S.C. § 1332(d)(2)(A)-(C) and (d)(1)(D) for purposes of CAFA mass action jurisdiction even if those persons are not named plaintiffs.



Issue(s): Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.



Issue(s): Whether, if a disability prevents an employee from performing the essential functions of his or her current position even with accommodation, the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., requires an employer to reassign a minimally qualified disabled employee to a vacant position as a “reasonable accommodation” even though another individual is entitled to the position under the employer’s established best-qualified selection system.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of May 23, 2013, SCOTUSblog (May. 16, 2013, 11:00 PM),