At its Conference on April 18, 2014, the Court will consider petitions seeking review of issues such as suspicionless drug testing as a condition of government employment, the scope of review for claims of qualified immunity, and the Second Amendment right to carry handguns outside the home for self-defense.

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 42 U.S.C. § 1981 prohibits a retail establishment from treating a customer in a racially discriminatory manner while the establishment is entering into and performing a contract with the customer, where the discrimination does not prevent the customer from completing the transaction.


Issue(s): Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.


Issue(s): Whether a state can restrict a national bank’s exercise of its fiduciary powers in connection with real property in that state if the bank is authorized to act as a fiduciary by the Comptroller of the Currency and not prohibited from doing so by the (different) state in which the bank is “located” under 12 U.S.C. § 92a and 12 C.F.R. § 9.7. CVSG: 10/07/2014.


Issue(s): (1) Whether a claim is ripe when it is predicated on a plaintiff’s potential future injury and mere good faith intent to take steps in fifteen to twenty years that could, depending on a chain of uncertain events, cause the plaintiff to suffer an actual injury some day in the future; and (2) whether the federal oxygenate mandate in the Clean Air Act Amendments of 1990, 42 U.S.C. § 7545, preempts a state-law tort award that imposes retroactive liability on a manufacturer for using the safest, feasible means available at the time for complying with that mandate.


Issue(s): (1) Whether a state may, consistent with the Fourth Amendment, condition government employment on an employee or job applicant’s consent to suspicionless drug testing; and (2) whether suspicionless drug testing of all government employees and job applicants is reasonable under the “special needs” exception to the Fourth Amendment’s warrant and probable cause requirements.


Issue(s): (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) 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 “justifiable need” for doing so.


Issue(s): Whether the Federal Power Act (FPA) preempts petitioners' property damage tort and takings claims caused by the operation of the licensee of a Federal Energy Regulatory Commission licensed dam project, where the provisions of the FPA have explicitly saved and reserved such claims to the property owners.


Issue(s): (1) Whether respondents have Article III standing and have established the requisite imminent risk of irreparable harm to obtain an injunction of Ariz. Rev. Stat. § 13-2929, which makes it unlawful for a person to knowingly “(1) transport or move or attempt to transport or move the alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield the alien from detection in Arizona; or (3) encourage or induce the alien to come to or live in Arizona”; (2) if respondents have standing, whether Ariz. Rev. Stat. § 13-2929 is void for vagueness even though its meaning is commonly understood; and (3) whether the court of appeals erred in finding that states are precluded from enacting any law that restricts a person from furthering or exploiting another’s unlawful presence in the United States.


Issue(s): Whether a medical professional can be convicted of “knowingly and willfully” making a false statement in medical records or reports under 18 U.S.C. § 1035 when the district court failed to instruct the jury that a guilty verdict requires proof of an intent to deceive.


Issue(s): Whether the court of appeals was correct when it held that it was “categorically precluded” from reviewing the record as a whole to determine whether plaintiff’s version of events, which the district court held sufficient to defeat qualified immunity, was blatantly contradicted by the record such that no reasonable jury could believe it; and (2) whether, if the court of appeals was required to review the record as whole to determine whether plaintiff’s version of events was blatantly contradicted by the record such that the defendant deputies were entitled to qualified immunity, a video or audio recording (such as in Scott v. Harris) is the only evidence that is sufficient to overcome conflicting version of events.


Issue(s): Whether, to exercise the right to rescind a mortgage loan under the Truth in Lending Act, it is sufficient for a consumer to notify the creditor in writing within three years of obtaining the loan (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer must also file suit within that three-year period (as the Eighth, Ninth, and Tenth Circuits have held).


Issue(s): Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.


Issue(s): Whether the Sixth Amendment permits the state’s expert witness to present to a jury the results of forensic tests that she neither performed nor witnessed as substantive evidence to support her conclusion that petitioner was the source of DNA evidence, when the state does not call the analysts who performed the tests as witnesses or show that they are unavailable and previously subject to cross-examination.



Issue(s): (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.


Issue(s): (1) Whether the court of appeals failed to apply the governing preponderance of the evidence standard in affirming the denial of petitioner's habeas corpus petition, thus denying him the meaningful review mandated by Boumediene v. Bush; and (2) whether the court of appeals improperly shifted the burden of proof to petitioner to disprove affiliation with al Qaeda or the Taliban at the time of his capture.


Issue(s): Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case at the cert. stage through the Stanford Law School Supreme Court Litigation Clinic, but he is not participating in the case at the merits stage.

Issue(s): Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.


Issue(s): Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.


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: Maureen Johnston, Petitions to watch | Conference of April 18, SCOTUSblog (Apr. 10, 2014, 12:24 PM),