At its December 13, 2013 Conference, the Court will consider petitions seeking review of issues such as secondary liability for supporting terrorist organizations under the Anti-Terrorism Act, a tribe’s eminent domain powers over a corporation located on tribal land, sanctions for violating the understood purpose of an injunction, and the constitutionality of a state ban on passive political statements written on clothing in polling places.

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.


Issue(s): Whether a state’s “sore loser” law barring a candidate who ran in one party’s primary from running under another party’s banner in the general election may constitutionally be applied to presidential elections.



Issue(s): (1) Whether the civil remedy provision of the Anti-Terrorism Act, 18 U.S.C. § 2333, supports claims against defendants based on theories of secondary liability, and requires plaintiffs to establish that a defendant’s support provided to a terrorist organization was a proximate cause of the plaintiffs’ injury; (2) whether U.S. courts have personal jurisdiction over defendants who, acting abroad, provide material support to a terrorist organization that attacks the territorial United States and the defendant intends to provide support to the organization, knows of the organization’s objective and history of attacking U.S. interests, and can foresee that its material support will be used in attacks on the United States. CVSG: 12/16/2013.


Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): Whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.



Issue(s): (1) Whether Montana v. United States applies on tribal land, as this Court suggested in Nevada v. Hicks, or whether this Court acquiesces in the Ninth Circuit’s contrary decision in Water Wheel Camp Recreation Area v. LaRance; (2) whether a non-tribal member consents to tribal jurisdiction under Montana even when that “consent” comes in the form of a contract with a tribal corporation which expressly provides that disputes will be resolved through binding arbitration, not in tribal court, and where the tribal enterprise has expressly waived its sovereign immunity to permit arbitration; (3) whether intangible contract rights of a Nevada corporation located on federal land are held in trust for the Tribe and thus subject to the Tribe’s eminent domain powers because they relate to activities on tribal land; and (4) whether the bad-faith exception to National Farmers Union Insurance Company v. Crow Tribe of Indians exhaustion requires a showing that the tribal court acted in bad faith, or whether it is sufficient to demonstrate that the Tribe’s governing council did so and that the Tribe’s judiciary lacked judicial independence.



Issue(s): Whether the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, bars enforcement of all state private rights of action against persons who furnish false information to consumer reporting agencies.





Issue(s): Whether state “dual impact” occupational safety and health laws that regulate workers as workers, not as members of the general public, can simultaneously be laws of general applicability that are not subject to federal preemption.



Issue(s): Whether a state statute prohibiting political speech including the banning of passive political statements written on clothing (i.e., “Liberty,” “Don’t Tread on Me,” “Freedom,” depiction of U.S. Flag) is facially unconstitutional under the First Amendment, regardless of whether a polling place is considered a nonpublic forum, because no conceivable governmental interest could justify such an absolute prohibition on the clothing people can wear to vote.



Issue(s): (1) Whether a conclusion about the meaning of scientific data, one on which scientists may reasonably disagree, satisfies the element of a “false or fraudulent” statement under the wire fraud statute, 18 U.S.C. § 1343; and (2) whether applying 18 U.S.C. § 1343 to scientific conclusions drawn from accurate data violates the First Amendment’s proscription against viewpoint discrimination, or renders the statute, as applied, unconstitutionally vague.



Issue(s): (1) Whether – as the Third, Seventh, and Eleventh Circuits hold – a district court possesses authority to prevent circumvention of its orders by imposing sanctions on conduct that violates the understood purpose of an injunction, but not its explicit terms, or whether – as the First, Second, Fifth, and Tenth Circuits hold – the four corners of an injunction’s text limit a district court’s civil contempt authority; (2) whether – as the First, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits hold – a court of appeals should accord deference to a district court’s construction of its own orders, or whether – as the Second, Fifth, District of Columbia, and Federal Circuits hold – an appellate court reviews that construction de novo.




Issue(s): Whether the Sixth Circuit erred by holding that respondents were not required to plausibly allege in their complaint that the fiduciaries of an employee stock ownership plan abused their discretion by remaining invested in employer stock, in order to overcome the presumption that their decision to invest in employer stock was reasonable, as required by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1101 et seq. (“ERISA”), and every other circuit to address the issue.




Issue(s): 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.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of December 13, SCOTUSblog (Dec. 9, 2013, 10:46 PM),