At its October 11, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of a state’s requirement that applicants for gun permits show “good and substantial reason,” the standing of an objecting class member to challenge a class-certification order, the scope of the right to present evidence in opposition to the death penalty under the Eighth Amendment, and the EPA’s authority to regulate greenhouse gases under the Clean Air 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 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.

13-169

Issue: Whether an objecting class member – whose antitrust claims have been waived by a settlement negotiated by class counsel appointed by a racially conscious class-certification order – has standing to challenge the class-certification order and, through it, the antitrust settlement.

 

13-167

Issue: Whether, as a matter of either due process or the Eighth Amendment right to present evidence in mitigation, the defendant in a capital case is entitled to oppose a death sentence by introducing evidence that he will pose a low risk of violence in the prison setting.

 

13-162

Issue: 1. Whether the Tenth Circuit erred when it held that the obligation to ensure Gerstein v. Pugh probable cause determinations rests independently on the arresting officer, the elected sheriff, and the detention center warden, in their individual capacities, in contradiction of state law, the directive of the New Mexico Administrative Office of the Courts, the authority of other circuits, and common law, thereby subjecting all detention center wardens, sheriffs, and officers in the Tenth Circuit to potential punitive damages and voluminous litigation; and (2) whether, under County of Riverside v. McLaughlin , absent clear state authority to the contrary, the duty to ensure a prompt probable cause determination rests exclusively with the arresting officer.

 

13-152

Issue: (1) Whether, when interpreting Interconnection Agreements issued pursuant to the Telecommunications Act of 1996, state agencies that interpret those agreements are entitled to deference on pure matters of law; (2) to resolve a split in the circuits, whether the Telecommunications Act of 1996 authorizes federal courts jurisdiction to evaluate the Mississippi Public Service Commission’s interpretation of a negotiated interconnection agreement or simply to evaluate whether the interconnection agreement complies with the substantive requirements of the Act; and (3) whether the Telecommunication Act of 1996 preempts the Mississippi legislature’s right to determine the deference given to the Mississippi Public Service Commission through its enabling act.

 

13-141

Issue: (1) Whether a dispute regarding the proper interpretation of an “interconnection agreement” (“ICA”) entered into pursuant to the Telecommunications Act of 1996 may be brought directly in federal court without exhausting administrative remedies in the state public utilities commission that approved the agreement; and (2) whether stock in a specific company held in an individual retirement account (“IRA”) qualifies as a “mutual or common investment fund” within the meaning of 28 U.S.C. § 455(d)(4)(i), such that a judge holding stock in a party to a case before him need not recuse himself if the stock is held in an IRA.

 

13-136

Issue: Whether, or in what circumstances, a cy pres remedy that provides no direct relief to class members comports with the requirement of Federal Rule of Civil Procedure 23(e)(2) that a settlement that binds class members must be “fair, reasonable, and adequate.”

 

13-95

Issue: (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.

 

13-53

Issue: (1) Whether the Sixth Circuit, in addressing an issue that has deeply divided the federal courts of appeals following this Court’s decision in United States v. Santos erred in defining “proceeds” in 18 U.S.C. § 1956(a)(1) as profits for purposes of Section 1956(a)(1)(A)(i), but “receipts” in the context of Section 1956(a)(1)(B)(i); and (2) whether the Sixth Circuit erred not only in applying the concurrent-sentence doctrine, in conflict with the Ninth Circuit’s conclusion that the doctrine is invalid, but also in creating a new divide in the circuits by concluding the doctrine applies even to convictions the government concedes are invalid.

 

13-42

Issue: Whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “good and substantial reason” for doing so.

 

13-34

Issue: Whether a taxpayer demonstrates “reasonable cause” under 26 U.S.C. § 6651(a)(1) or “ordinary business care and prudence” under 26 C.F.R. § 301.6651-1(c)(1) when, in reliance on the advice of the taxpayer’s accountant or attorney, the taxpayer files a tax return after the actual due date but within the time the accountant or attorney erroneously advised the taxpayer was available.

 

13-10

Issue: Whether the court of appeals has original jurisdiction under 33 U.S.C. 1369(b)(1) over a petition for review challenging the Environmental Protection Agency’s Water Transfers Rule, 40 C.F.R. 122.3(i).

 

12-1493

Issue: (1) Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . . to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).

 

12-1480

Issue: (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

 

12-1472

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

 

12-1401

Issue: Whether consumers have standing to challenge the constitutionality of laws regulating the sale of firearms.

 

12-1352

Issue: (1) Whether the "domestic industry" requirement of section 337 of the Tariff Act of 1930 is satisfied by "licensing alone" despite the absence of proof of "articles protected by the patent;" and (2) whether underlying factual determinations in a patent claim construction ruling should be subject to deferential review by the Federal Circuit.

 

12-1272

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1269

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1268

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1254

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1253

Issue: Whether the Clean Air Act and this Court’s decision in Massachusetts v. EPA prohibit the Environmental Protection Agency from considering whether regulations addressing greenhouse gases under Section 202 of the Act would meaningfully mitigate the risks identified as the basis for their adoption.

 

12-1248

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1217

Issue: (1) Whether the “hot pursuit” doctrine articulated in United States v. Santana applies where police officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.

 

12-1153

Issue: Whether the EPA's regulation determining that carbon dioxide and related substances pose a danger to human health and welfare must be set aside because the EPA violated the congressional mandate to submit the proposed endangerment finding to the Science Advisory Board for peer review, as required by 42 U.S.C. § 4365(c)(1).

 

12-1152

Issue: (1) Whether Virginia and other petitioners below demonstrated that there was evidence of central relevance to the EPA’s Endangerment Finding not available during the comment period such that the Administrator was obligated to convene a proceeding for reconsideration with procedural rights of notice and comment; (2) whether the EPA correctly applied the standard for demonstrating central relevance; (3) whether the EPA erred when it found the objections material enough to require resort to extensive new evidence outside of the record while denying the rights of notice and comment on that evidence; and (4) whether the EPA erred initially and on Petition for Reconsideration by delegating its Statutory Authority to outside entities.

 

12-1146

Issue: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

 

12-1086

Issue: Whether the Court of Appeals for the Federal Circuit erred in restricting district courts’ equitable discretion in evaluating patent unenforceability, contrary to this Court’s precedent in Keystone Driller Co. v. General Excavator Co., Hazel Atlas Glass Co. v. Hartford-Empire Co., and Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., by applying a rigid test that (a) forecloses district courts from considering the entire circumstantial record; and (b) precludes district courts from granting equitable remedies where a patent applicant has violated the Patent and Trademark Office’s duty of candor.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of October 11, SCOTUSblog (Oct. 9, 2013, 8:23 AM), http://www.scotusblog.com/2013/10/petitions-to-watch-conference-of-october-11/