At its Conference on January 10, 2014, the Court will consider petitions seeking review of issues such as whether streaming live television is a “public performance,” class certification for a products liability class, a state law prohibiting abortions after twenty weeks, and Lanham Act claims arising from juice labels.

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, under the principles of Lapides v. Board of Regents of University System of Georgia a State waives its sovereign immunity when it voluntarily invokes federal jurisdiction by removing a case to federal court, regardless of whether the State has relinquished that immunity in its own courts.



Issue(s): Whether a federal court that bases its harmless error decision on the “grave doubt” rule of O'Neal v. McAninch can condemn a state court’s harmless-error decision as “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,” Harrington v. Richter, such that 28 U.S.C. 2254(d) will not bar federal habeas relief.



Issue(s): Whether the United States Constitution prohibits a state from taxing all the income of its residents -- wherever earned -- by mandating a credit for taxes paid on income earned in other states.


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

Issue(s): (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.



Issue(s): Whether the Federal Circuit’s effective redefinition of obviousness as a pure question of law, allowing it to resolve disputed factual questions in the first instance on appeal, violates the Seventh Amendment and this Court’s precedent.



Issue(s): Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.



Issue(s): (1) Whether the of Federal Rule of Civil Procedure 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis; and (2) whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis.



Issue(s): (1) Whether the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) is satisfied by the purported “efficiency” of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a product liability class may be certified where it is undisputed that most members did not experience the alleged defect or harm.



Issue(s): (1) Whether the Ninth Circuit correctly held that the “viability” line from Roe v. Wade and Planned Parenthood v. Casey remains the only critical factor in determining constitutionality, to the exclusion of other significant governmental interests, or whether Arizona’s post-twenty-week limitation is facially valid because it does not pose a substantial obstacle to a safe abortion; (2) whether the Ninth Circuit erred in declining to recognize that the State’s interests in preventing documented fetal pain, protecting against a significantly increased health risk to the mother, and upholding the integrity of the medical profession are sufficient to support limitations on abortion after twenty weeks gestational age when terminating the pregnancy is not necessary to avert death or serious health risk to the mother; and (3) whether, if the Ninth Circuit correctly held that its decision is compelled by this Court’s precedent in Roe v. Wade and its progeny, those precedents should be revisited in light of the recent, compelling evidence of fetal pain and significantly increased health risk to the mother for abortions performed after twenty weeks gestational age.


Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.

Issue(s): (1) Whether the Federal Circuit’s acceptance of ambiguous patent claims with multiple reasonable interpretations – so long as the ambiguity is not “insoluble” by a court – defeats the statutory requirement of particular and distinct patent claiming; and (2) whether the presumption of validity dilutes the requirement of particular and distinct patent claiming.



Issue(s): (1) Whether the Trademark Trial and Appeal Board’s finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the Board’s finding of a likelihood of confusion absent strong evidence to rebut it. CVSG: 01/13/2014.



Issue(s): Whether the Federal Arbitration Act preempts a state-law rule that forbids arbitration of state-law employment-discrimination claims unless an arbitration agreement “clearly and specifically” refers to those claims, even when the parties agree to arbitrate “any legal disputes . . . which arise out of, or are related in any way to” the “employment . . . or its termination.”



Issue(s): (1) Whether, in an ordinary civil case, Federal Rule of Civil Procedure 16 gives a District Court carte blanche to raise, sua sponte, the affirmative defense of statute of limitations, where the defense was apparent on the face of the plaintiff’s complaint but the defendants had failed to plead it in their Answer and admitted to the Court that they had “missed it”; and (2) whether Federal Rule of Civil Procedure 8(c)(1), and the principle of party presentation that it embodies, preclude a District Court in an ordinary civil case from raising, sua sponte, a forfeited affirmative defense and granting the defendant leave to file an Amended Answer.



Issue(s): Whether 8 U.S.C. § 1252(a)(2)(C), which limits Article III jurisdiction as to asylum and withholding of removal, restricts Article III jurisdiction in deferral of removal cases in the absence of statutory text to that effect.



Issue(s): Whether the requirement that all defendants in a state court action subject to removal must either join in a timely notice of removal or consent to removal the consent is satisfied by a mere representation from counsel for the removing defendant that all codefendants consent to removal (the rule in the Fourth, Sixth and Ninth Circuits) or must each codefendant file a timely written statement of consent with the court (the rule in the Fifth, Seventh and Eighth Circuits).



Issue(s): Whether an unsupported allegation that the Internal Revenue Service (IRS) issued a summons for an improper purpose entitles an opponent of the summons to an evidentiary hearing to question IRS officials about their reasons for issuing the summons.



Issue(s): Whether the Federal Circuit erroneously rejected the jury’s damages verdict after holding – in direct conflict with the decisions of this Court – that a patent owner is barred from obtaining damages under 35 U.S.C. § 284 for lost sales outside the United States, even where those lost sales are the direct and foreseeable result of patent infringement inside the United States.



Issue(s): Whether a housing authority, in administering contracts under the federal Section 8 program for low income housing, may deny to participating landlords an annual adjustment in reimbursable rental rates because the owner did not produce a supporting “market comparability study”—when those contracts and federal law require that an adjustment is “automatic” unless the authority produces a supporting market study and affirmatively “determine[s]” on that basis that an adjustment is unwarranted.



Issue(s): Whether the Ninth Circuit violated the Constitution, created circuit splits, contravened this Court’s decisions, and subverted the appellate process by replacing the question presented by the parties with an issue that the prosecution deliberately abandoned, and by making a factual finding (i.e. that reasonable suspicion existed) for the first time on appeal that disregarded the factual findings of the district court and agents at the scene, and then by holding that a citizen’s personal belongings may be seized at the border with no suspicion of wrongdoing.



Issue(s): (1) Whether Section 307(b)(1) of the Clean Air Act allows petitioning for direct review within sixty days of the denial of a petition under 5 U.S.C. § 553(e) that presents after-arising issues; (2) whether Section 307(b)(1) prohibits indirect review of an agency rule – outside the original sixty-day window – if made as part of a timely challenge to new agency action that applies the prior rule.



Issue(s): (1) Whether the Third Circuit is correct in its view that the “single event or occurrence exception” to “mass actions” under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(B)(ii)(I), applies when the record merely “demonstrates circumstances that share some commonality and persist over a period of time” such as forty years of alleged releases by different owners, of different materials by different mechanisms – or the Ninth Circuit is correct in its view that it applies only in “cases involving a single event or occurrence, such as an environmental accident;" and (2) whether the Third Circuit incorrectly assigned the burden with regard to such an exception to the petitioner.




Issue(s): Whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiffs’ allegations that those official acts violate jus cogens norms of international law.



Issue(s): Whether a party may be liable for infringement under either section of the patent infringement statute, 35 U.S.C. §271(a) or § 271(b), where two or more entities join together to perform all of the steps of a process claim.



Issue(s): Whether post-judgment discovery in aid of enforcing a judgment against a foreign state can be ordered with respect to all assets of a foreign state regardless of their location or use, as held by the Second Circuit, or is limited to assets located in the United States that are potentially subject to execution under the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1602 et seq., as held by the Seventh, Fifth, and Ninth Circuits.



Issue(s): Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under Section 271(a).


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

Issue(s): Whether the court of appeals erred in holding that a private party cannot bring a Lanham Act claim challenging a product label regulated under the Food, Drug, and Cosmetic Act. (Justice Breyer is recused)




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 January 10, SCOTUSblog (Dec. 31, 2013, 10:44 PM),