At its Conference on June 5, 2014, the Court will consider petitions seeking review of issues such as the retroactive application of Miller v. Alabama, agency revision of interpretative rules under the Administrative Procedure Act, and the role of judges in assessing the factual basis for expert testimony.

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.

13-1220

Issue: Whether petitioner, as a disabled combat veteran who is undeniably mentally ill, received ineffective assistance of counsel during the hurried sentencing phase of his death penalty trial.

13-1193

Issue: Whether either full faith and credit principles or due process permits generic findings from the decertified Engle class action, a state-wide class action arising out of diseases and medical conditions allegedly caused by an addiction to cigarettes that contain nicotine—findings the Florida Supreme Court deemed “useless” for issue preclusion purposes—to be used to excuse thousands of plaintiffs in follow-on cases from proving essential elements of their claims.

13-1187

Issue: Whether the generic findings from the decertified Engle class action, a state-wide class action arising out of diseases and medical conditions allegedly caused by an addiction to cigarettes that contain nicotine—findings the Florida Supreme Court deemed “useless” for issue preclusion purposes—can be used to excuse thousands of plaintiffs in follow-on cases from proving essential elements of their claims without violating defendants’ due process rights.

13-1056

Issue: Whether Title II of the Americans with Disabilities Act (ADA) authorizes federal courts to hold state officials responsible for remedying alleged ADA violations against parole violators housed in county jails, when state law expressly delegates to the counties sole legal custody and jurisdiction over those parole violators.

13-1052

Issue: 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.

13-1051

Issue: Whether Federal Rule of Evidence 702 requires a court, and not the jury, to decide whether expert testimony is “based on sufficient facts or data” and “reliably applie[s] . . . principles and methods to the facts of the case,” and to set aside a jury verdict that rests on expert testimony that fails to meet these fundamental requirements.

13-1045

Issue: (1) Whether the Court’s analysis of equitable jurisdiction in Great-West Life & Annuity Insurance Co. v. Knudson applies to Section 13(b) of the Federal Trade Commission Act (15 U.S.C. § 53(b)) so that relief is limited to typical equitable remedies, or whether Section 13(b) allows district courts to award the FTC virtually unlimited legal relief including damages for alleged customer loss; and (2) whether a district court abuses its discretion under Section 13(b) by conforming monetary awards to the unique facts of the case and typical equitable remedies, such as a defendant’s unjust gain from alleged violations of the FTC Act.

13-1041

Issue: 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.

13-1038

Issue: Whether the substantive holding in Miller v. Alabama, that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without parole under the Eighth Amendment unless there is consideration of individual mitigating circumstances, applies on collateral review to petitioner.

13-1037

Issue: Whether an objectively profitable transaction can be disregarded for tax purposes under the judge-made economic substance doctrine because it was structured to achieve income tax deductions authorized by the plain language of the Internal Revenue Code.

13-897

Issue: 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).

13-856

Issue: (1) Whether the Federal Arbitration Act preempts a California rule that would condition enforcement of arbitration agreements upon a pre-arbitration, judicial determination that the arbitration agreement, as applied, provides for judicially imposed standards for accessibility, informality, and affordability unique to certain statutory claims notwithstanding the U.S. Supreme Court’s recent prior decisions in AT&T Mobility LLC v. Concepcion (precluding states from requiring arbitration procedures inconsistent with the FAA, even if based on public policy considerations) and American Express Co. v. Italian Colors Restaurant (“the FAA’s command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims”); and (2) whether the Federal Arbitration Act preempts California efforts to invent and apply a new unconscionability test (“unreasonably one-sided”), in lieu of the unconscionability test generally applicable in California (“shocks the conscience”), notwithstanding the plain language of Section 2 of the FAA that limits defenses to arbitration agreement enforcement to “such grounds as exist at law or in equity for the revocation of any contract” and precludes defenses to arbitration enforcement that apply uniquely to arbitration agreements.

Relists

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

Issue: (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.

12-755

Issue: (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.

CVSG

13-130

Issue: (1) Whether an Employee Retirement Income Security Act (ERISA) plan may enforce an equitable lien by agreement under Section 502(a)(3) of ERISA where it has not identified a particular fund that is in the defendant’s possession and control at the time the Plan asserts its equitable lien; and (2) whether a discretionary clause in an ERISA plan mandating that an abuse-of-discretion standard of judicial review be applied to a Section 502(a)(1)(B) denial-of-benefits claim is enforceable when the clause was never disclosed to the participant in any plan document, as the Second Circuit held here, or whether the Plan must give participants and beneficiaries clear notice of such a clause, as the Seventh Circuit has required. CVSG: 10/07/2013.

 

Posted in Cases in the Pipeline, Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of June 5, SCOTUSblog (Jun. 3, 2014, 10:15 AM), http://www.scotusblog.com/2014/06/petitions-to-watch-conference-of-june-5/