Petitions to watch | Conference of September 30
At its September 30, 2013 Conference, the Court will consider petitions seeking review of issues such as determining qualified immunity based on the law at time of the conduct at issue, res judiciata as a bar to second removal proceedings, and proof of intent to send threatening communications.
This is our first of three “Petitions to watch” installments for the September 30 Conference. We feature 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, P.C. represents the respondent(s) but does not appear on the briefs in the case.
Issue(s): Whether, in light of the plain meaning of “threat” and the constitutional rule of Virginia v. Black, a conviction under 18 U.S.C. § 875(c) for “transmit[ing] in interstate or foreign commerce any communication containing . . . any threat to injure the person of another” requires proof of a subjective or specific intent to threaten.
Issue(s): Whether the Federal Circuit’s promulgation of a rigid and exclusive two-part test for determining whether a case is “exceptional” under 35 U.S.C. § 285 improperly appropriates a district court’s discretionary authority to award attorney fees to prevailing accused infringers in contravention of statutory intent and this Court’s precedent, thereby raising the standard for accused infringers (but not patentees) to recoup fees and encouraging patent plaintiffs to bring spurious patent cases to cause competitive harm or coerce unwarranted settlements from defendants.
Issue(s): Whether a district court’s exceptional-case finding under 35 U.S.C. § 285 (which permits the court to award attorney’s fees in exceptional cases), based on its judgment that a suit is objectively baseless, is entitled to deference.
Issue(s): Whether res judicata bars the government from instituting a second removal proceeding against an immigrant based on a conviction that could have been charged as the basis for removal in a prior removal proceeding that resulted in a final decision in the immgrant’s favor.
Issue(s): (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.
Issue(s): Whether a court must find that a sovereign intended to relinquish its Eleventh Amendment immunity in order to find that the sovereign waived that immunity through its litigation conduct, for example, by promising to make payments voluntarily in order to avoid a court injunction requiring those payments.
Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of September 30, SCOTUSblog (Aug. 13, 2013, 10:03 AM), http://www.scotusblog.com/2013/08/petitions-to-watch-conference-of-september-30/