At its Conference on June 12, 2014, the Court will consider petitions seeking review of issues such as the justiciability of claims against a private battlefield support contractor in an active war zone, equitable tolling under the Federal Tort Claims Act, and a court’s authority to order a foreign sovereign to pay defaulted debt.

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.

13-1289

Issue(s): Whether the Tenth Circuit erred and deprived C.O.P. Coal Development Co. (“COP”) of due process when it affirmed the dismissal of COP’s appeal challenging a bankruptcy court’s interpretation of a Coal Operating Agreement as moot because the assets at issue had been sold by the bankruptcy trustee, when (a) COP was entitled to relief that did not affect the bankruptcy sale; and (b) the trustee failed to carry his burden—as established by Tenth Circuit precedent—to prove that such relief was “impossible.”

13-1241

Issue(s): (1) Whether the political question doctrine bars state-law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would necessarily require examining sensitive military judgments; (2) whether the Federal Tort Claim Act's “combatant-activities exception,” 28 U.S.C. § 2680(j), preempts state-law tort claims against a battlefield support contractor that arise out of the U.S. military's combatant activities in a theater of combat; and (3) whether the doctrine of derivative sovereign immunity bars state-law tort claims against a private contractor performing delegated public functions where the government would be immune from suit if it performed the same functions. CVSG: 12/16/2014.

13-1080

Issue(s): Whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly . . . develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains that is required by federal law, and provides for the STB to appoint an arbitrator if the FRA and Amtrak cannot agree on the metrics and standards within 180 days, effects an unconstitutional delegation of legislative power to a private entity.

13-1001

Issue(s): (1) Whether, in order for a criminal securities fraud prosecution for trading on the basis of inside information to be consistent with our constitutional traditions and with Section 10(b) of the Securities Exchange Act of 1934, which makes it unlawful to “use” or “employ” any “manipulative or deceptive device” “in connection with the purchase or sale” of a security, the government must prove, at a minimum, that the inside information was a substantial factor in the defendant’s trading activities; and (2) whether wiretap evidence must be suppressed when the government omits and misstates information clearly critical to assessing the legality of a wiretap, instead of providing the “full and complete statement” required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

13-1075

Issue(s): Whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

13-1074

Issue(s): Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

13-991

Issue(s): (1) Whether, where a foreign nation has refused to make payments to holders of its defaulted debt instruments, a federal court can coerce payment by issuing an injunction preventing a non-party trustee from paying non-party holders of the sovereign’s non-defaulted debt instruments unless the sovereign also satisfies in full the claims of the defaulted debt holders, thereby imposing otherwise non-existent conditions on the payment rights of the non-parties and creating a grave risk of default; (2) whether the Fifth Amendment’s prohibitions against government deprivations and takings of private property solely for the purpose of conferring a private benefit bar a federal court from granting equitable relief that conditions the payment rights of the non-party, non-defaulted debt holders on the sovereign’s payment of overdue sums to parties who are holders of the defaulted debt; and (3) whether non-party holders of debt instruments have standing to appeal the district court’s entry of an order that prohibits payments on those specific debt instruments — and no others — until the debtor has satisfied unrelated overdue payments on other debt instruments.

13-990

Issue(s): (1) Whether this Court should certify to the New York Court of Appeals this question: Whether a foreign sovereign is in breach of a pari passu clause when it makes periodic interest payments on performing debt without also paying on its defaulted debt; and (2) whether a district court can enter an injunction coercing a foreign sovereign into paying money damages, without regard to whether payment would be made with assets that the Foreign Sovereign Immunities Act makes immune from “attachment arrest and execution,” 28 U.S.C. §§ 1609–1611.

13-950

Issue(s): (1) Whether, under the Fair Labor Standards Act, employers are responsible for reimbursing foreign workers’ pre-employment travel and immigration expenses; and (2) whether deference is owed to the Department of Labor’s interpretation of the FLSA and its regulations.

13-947

Issue(s): (1) Whether the Federal Circuit correctly held that a dispute between two states over ownership of patent rights may be adjudicated in a federal district court, despite this Court's exclusive jurisdiction over suits between states, as long as (A) the plaintiff-state sues only officials of the other state in their official capacity, and (B) the district court determines that the case does not implicate the core sovereign interests of the two states; and (2) whether a state can utilize the Ex parte Young doctrine to circumvent this Court's original and exclusive jurisdiction over controversies between states by amending its complaint to drop the defendant-state and add in its place state officials against whom the plaintiff-state seeks no relief, where the dispute concerns which state is the owner of disputed patent rights.

13-936

Issue(s): Whether, where transportation workers engaged in interstate commerce have contracted to arbitrate questions of arbitrability, in addition to disputes relating to the relationship created by the parties' agreement, the district court must determine whether the contract is an employment contract exempt from Section 1 of the Federal Arbitration Act, or whether the arbitrator must do so.

13-817

Issue(s): (1) Whether the political question doctrine bars state-law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would necessarily require examining sensitive military judgments; (2) whether the Federal Tort Claims Act's “combatant-activities exception,” 28 U.S.C. § 2680(j), preempts state-law tort claims against a battlefield support contractor that arise out of the U.S. military's combatant activities in a theater of combat. CVSG: 12/16/2014.

Relists

13-1052

Issue(s): Whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.

13-1041

Issue(s): Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

13-983
Disclosure: John Elwood, a frequent contributor to this blog, is among the counsel to the petitioner in the case.

Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

13-897

Issue(s): Whether, in a claim of ineffective assistance of appellate counsel, a state appellate court’s holding that an omitted state law issue ultimately lacked merit precludes a federal habeas court from later finding either deficient performance or prejudice relating to that omission under the standards of Strickland v. Washington and 28 U.S.C. § 2254(d).

12-755

Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

 

Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of June 12, SCOTUSblog (Jun. 10, 2014, 12:00 PM), http://www.scotusblog.com/2014/06/petitions-to-watch-conference-of-june-12/