Petitions We’re Watching

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Petitions for Conference of 05.23.2013

Docket Case Page Issue(s) CVSG
12-1159 Planned Parenthood of Indiana v. Secretary of the Indiana Family and Social Services Administration Whether the Indiana statute that disqualifies a health care provider from participating in a government program because, outside that program and with wholly private funds, it provides abortion care imposes an unconstitutional condition in violation of the Fourteenth Amendment to the United States Constitution. N/A
12-1039 Secretary of the Indiana Family and Social Services Administration v. Planned Parenthood of Indiana (1) Whether 42 U.S.C. § 1396a(a)(23)), which provides that state Medicaid plans must allow Medicaid beneficiaries to obtain medical assistance from any qualified provider, creates federal “rights” in Medicaid beneficiaries that may be privately enforced under 42 U.S.C. § 1983 by Medicaid beneficiaries and providers; and (2) whether a state deprives Medicaid beneficiaries of choice among qualified providers under 42 U.S.C. § 1396a(a)(23) by mandating that providers refrain from providing elective abortions as a condition of Medicaid eligibility. N/A
12-1036 Mississippi ex rel. Hood v. AU Optronics Corp. Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint. N/A
12-928 Intercollegiate Broadcasting System v. Copyright Royalty Board (1) Whether the court failed to cure the violation of the Appointments Clause because, despite the judicial revision of 17 U.S.C. § 802(i) to permit the Librarian of Congress to fire Copyright Royalty Judges without cause, Copyright Royalty Judges are principal officers because they retain the power to render a final decision on behalf of the United States; and (2) whether, even if the court’s remedy demoted the judges, it failed to cure the constitutional violation because the Librarian of Congress is not the Head of an Executive Branch Department and thus may not appoint officers of the United States; and (3) whether, even if the remedy chosen by the court cured the constitutional defect, the court nevertheless should have let Congress select the appropriate remedy. N/A
12-926 Director of the Department of Revenue of Montana v. Department of the Treasury (1) Whether the federal savings bond statute and regulations impliedly preempt longstanding state unclaimed property laws, where the statute and regulations are wholly silent on the treatment of unclaimed bonds and where Congress has expressly preempted state unclaimed property laws in numerous other contexts; and (2) whether application of state unclaimed property laws to unclaimed U.S. savings bonds owned by state residents violates the intergovernmental immunity doctrine, where these laws reflect the states’ exercise of constitutionally reserved escheat power. N/A
12-911 AU Optronics Corporation v. South Carolina Whether the citizenship of the persons on whose behalf monetary relief claims are brought by a state may satisfy the Class Action Fairness Act's minimal diversity requirement as set forth in 28 U.S.C. § 1332(d)(2)(A)-(C) and (d)(1)(D) for purposes of CAFA mass action jurisdiction even if those persons are not named plaintiffs. N/A
12-895 Rosemond v. U.S. Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits. N/A
12-794 White v. Woodall (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators. N/A
12-707 United Airlines v. Equal Employment Opportunity Commission Whether, if a disability prevents an employee from performing the essential functions of his or her current position even with accommodation, the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., requires an employer to reassign a minimally qualified disabled employee to a vacant position as a “reasonable accommodation” even though another individual is entitled to the position under the employer’s established best-qualified selection system. N/A
12-694 Nevada v. Jackson Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter. N/A

Petitions for Conference of 05.30.2013

Docket Case Page Issue(s) CVSG
12-1190 Ryan v. Lambright Whether the Ninth Circuit created an improper and unworkable rule by inventing a duty for district courts to sua sponte impose a blanket protective order—absent any request from the privilege holder—at the commencement of any discovery in habeas proceedings in which the habeas petitioner asserts a claim of ineffective assistance of counsel. N/A
12-1145 Clements v. Ray (1) Whether, to determine when a state application for post-conviction relief has been properly filed for purposes of tolling under 28 U.S.C. § 2244(d)(2), the federal mailbox rule applies unless the state court has clearly rejected the rule (as the court below held), or state law determines when the application was properly filed (as the majority of circuits have held); (2) whether, when tolling under 28 U.S.C. § 2244(d)(2) is at issue, the state bears the burden to show the prisoner did not properly file a state post-conviction motion (as the court below held), or the prisoner bears the burden to show he is entitled to tolling (as the Ninth and Eleventh Circuits have held); and (3) whether the Seventh Circuit exceeded the scope of its limited appellate authority by substituting its judgment for the district court’s when it refused to accept the lower court’s credibility determinations. N/A
12-1077 Scott v. Saint John’s Church in the Wilderness (1) Whether the government may restrict the display of “gruesome” material within political, moral, and religious advocacy in a traditional public forum, in order to protect the sensibilities of children; and (2) whether provisions of an injunction based expressly in part on the supposedly harmful content of defendants’ speech should be subjected to strict scrutiny. N/A
12-1067 Sears, Roebuck and Co. v. Butler (1) Whether Federal Rule of Civil Procedure 23(b)(3)'s predominance requirement for class action certification can be satisfied based solely on a determination that it would be “efficient” to decide a single common question at trial, without considering any of the individual issues that would also need to be tried, and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a class may be certified on breach of warranty claims where it is undisputed that most members did not experience the alleged product defect and where fact of injury would have to be litigated on a member-by-member basis. N/A
12-1038 U.S. v. Apel Whether 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. N/A
12-873 Lexmark Int'l v. Static Control Components Whether the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act is (1) the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases. N/A
12-802 Behenna v. U.S. Whether a servicemember in a combat zone categorically forfeits the right to self-­defense as a matter of law by pointing a firearm without authorization at a suspected enemy. N/A

Petitions Not Set for Conference

Docket Case Page Issue(s) CVSG
12-1281 National Labor Relations Board v. Noel Canning (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate, and (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess. N/A
12-1168 McCullen v. Coakley (1) Whether the First Circuit erred in upholding Massachusetts’ selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. N/A
12-1094 Cline v. Oklahoma Coalition for Reproductive Justice Whether the Oklahoma Supreme Court erred in holding – without analysis or discussion – that the Oklahoma law requiring that abortion-inducing drugs be administered according to the protocol described on the drugs’ FDA-approved labels is facially unconstitutional under Planned Parenthood v. Casey. N/A
12-1076 Fleming v. Moswin (1) Whether plaintiffs are entitled to a new trial when defendants' race-neutral explanation for their peremptory challenge of a black venireperson was not supported by the record; and (2) whether the preliminary issue of plaintiffs having established a prima facie showing is moot. N/A
12-1057 Allison Engine Company v. U.S. Whether Section 3729(a)(1)(B) of the False Claims Act applies retroactively to cases pending on or after June 7, 2008, where no allegedly false claim for payment was pending on or after that date. N/A
12-651 Amy and Vicky, Child Pornography Victims v. U.S. District Court for the Western District of Washington Whether, when the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, provides that a court “shall order restitution” for a victim of child pornography “in the full amount of the victim’s losses,” which are defined to include several specified categories as well as “any other losses suffered by the victim as a proximate cause of the offense,” a defendant is excused from paying restitution for the itemized loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime. N/A

Calls for the Views of the Solicitor General

Docket Case Page Issue(s) CVSG
22o141 Texas v. New Mexico and Colorado Whether New Mexico is in violation of the Rio Grande Compact and the Rio Grande Project Act, which apportion water to Rio Grande Project beneficiaries. 04/15/13
12-5196 Law v. Siegel Whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge the debtor’s constitutionally protected homestead property? 12/3/2012
12-1086 Sony Computer Entm't America LLC v. 1st Media, LLC Whether the Court of Appeals for the Federal Circuit erred in restricting district courts’ equitable discretion in evaluating patent unenforceability, contrary to this Court’s precedent in Keystone Driller Co. v. General Excavator Co., Hazel Atlas Glass Co. v. Hartford-Empire Co., and Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., by applying a rigid test that (a) forecloses district courts from considering the entire circumstantial record; and (b) precludes district courts from granting equitable remedies where a patent applicant has violated the PTO’s duty of candor. 05/13/2013
12-842 Republic of Argentina v. NML Capital 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. 04/15/2013
12-820 Lozano v. Alvarez (1) Whether a district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent; and (2) whether an abducted child can be “settled” in the United States, within the meaning of Article 12 of the Convention, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status. 3/18/2013
12-761 POM Wonderful LLC v. The Coca Cola Company 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. 03/25/2013
12-751 Fifth Third Bancorp v. Dudenhoeffer (1) 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; and (2) whether the Sixth Circuit erred by refusing to follow precedent of this Court (and the holdings of every other circuit to address the issue) by holding that filings with the Securities and Exchange Commission become actionable ERISA fiduciary communications merely by virtue of their incorporation by reference into plan documents. 03/25/2013
12-604 Madison County v. Oneida Indian Nation of New York Whether the 300,000-acre ancient Oneida reservation in New York still exists, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries. 2/19/2013
12-515 Michigan v. Bay Mills Indian Community (1) Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701 et seq., but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands. 1/7/2013
12-379 Michigan Department of Licensing and Regulatory Affairs v. Gerstenschlager (1) Whether the Trade Act of 1974 prescribes a deadline for a claimant seeking a training waiver as a prerequisite to obtaining benefits under the Act; and (2) whether a federal agency’s operating instruction, which states are bound to follow by statutory agreement, is entitled to Chevron deference 1/7/2013
12-315 Air Wisconsin Airlines Corp. v. Hoeper (1) Whether a court can deny Aviation and Transportation Security Act (ATSA) immunity without deciding whether the airline’s report was true; and (2) whether the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving a statement was false. 1/7/2013
12-312 Mulhall v. Unite Here Local 355 Whether intangible things can be “deliver[ed]” under Section 302(a)(2) of the Labor Management Relations Act, which makes it unlawful for employers “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization.” 29 U.S.C. § 186(a)(2). 01/14/2013
12-300 Pfizer Inc. v. Law Offices of Peter G. Angelos Whether the Second Circuit erred by failing to apply as written a federal statute, 11 U.S.C. § 524(g)(4)(A)(ii), governing asbestos-related claims in chapter 11 bankruptcy proceedings, by construing the phrase “arises by reason of” as invoking only a legal standard rather than a factual inquiry, thereby limiting its scope in a manner that is contrary to its plain terms and that frustrates the congressional purposes of the statute. 01/12/2013
12-138 BG Group PLC v. Republic of Argentina Whether, in disputes involving a multi-staged dispute resolution process, a court or the arbitrator determines whether a precondition to arbitration has been satisfied. 11/5/2012
12-99 Unite Here Local 355 v. Mulhall Whether an employer and union may violate Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business. 01/14/2013
12-9 Arzoumanian v. Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG Whether a state law concerning traditional state responsibilities, such as extending the statute of limitations and providing forum access for insurance claims, can be invalidated under the foreign affairs doctrine in the absence of a conflict with federal policy or an indication of federal intent to preempt the field. 10/1/2012
11-1507 Mount Holly v. Mt. Holly Gardens Citizens in Action (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and (2) whether, if such claims are cognizable, they should be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test: (a) what the correct test is for determining whether a prima facie case of disparate impact has been made; (b) how the statistical evidence should be evaluated; and (c) what the correct test is for determining when a defendant has satisfied its burden in a disparate impact case. 10/29/2012
11-1485 Young v. Fitzpatrick (1) Whether police officers, employed by the Puyallup Indian Tribe, but trained, certified, and cross-commissioned by the state of Washington, and armed, equipped, and provisioned by the United States, are subject to the Constitution, U.S. civil rights laws, and state tort law; (2) whether the Shelter or Conceal Clause of the Treaty of Medicine Creek, and additional sources of federal and state law, preempts any claims of qualified immunity by individual Puyallup tribal police officer defendants in a suit for violation of the Constitution, U.S. civil rights laws, and state tort law. 10/1/2012
11-681 Harris v. Quinn (1) Whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review. 06/28/2012

Petitions Held for Another Conference

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