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Petitions to watch | Conference of November 10, 2011

At its November 10 Conference, the Court considers such issues as the constitutionality of the Affordable Care Act, eligibility for Social Security benefits, and the interaction of the Bankruptcy Code’s automatic stay and the Real Estate Settlement Procedures Act.  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.


Liberty University v. Geithner

Docket: 11-438

Issue: (1) Whether the Anti-Injunction Act (AIA) bars courts from deciding the limits of federal power to enact a novel and unprecedented law that forces individuals into the stream of commerce and coerces employers to reorder their business to enter into a government-mandated and heavily regulated health insurance program when the challenged mandates are penalties, not taxes, where the government argues Congress never intended the AIA to apply, and where the petitioners are currently being forced to comply with various parts of the law and thus have no other alternative remedy but the present action; (2) whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces individuals who otherwise are not market participants to enter the stream of commerce and purchase a comprehensive but vaguely defined and burdensome health insurance product, and if so, to what extent can this essential part of the statutory scheme be severed; and (3) whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces private employers into the health insurance market and requires them to enter into third-party contracts to provide a comprehensive but a vaguely defined health insurance product to their employees and extended beneficiaries, and if so, to what extent can this essential part of the statutory scheme be severed.

Certiorari-stage documents


Florida v. Department of Health and Human Services 

Linked with:

 Docket: 11-400

Issue: (1) Whether Congress exceeds its enumerated powers and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or whether the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer applies; (2) whether Congress may treat states no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or whether Garcia‘s approach has been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty; and (3) whether the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceeds Congress‘s enumerated powers and, if so, to what extent (if any) the mandate can be severed from the remainder of the Act.

Certiorari-stage documents


U.S. Department of Health and Human Services v. Florida

Linked with:

Docket: 11-398

Issue: Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.  Petitioners also suggest that the Court direct the parties to address the following question: whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).

Certiorari-stage documents

  • Opinion below (11th Cir.)
  • Petition for certiorari
  • Petitioners’ reply
  • Amicus brief of America’s Health Insurance Plans
  • Amicus brief of American Hospital Association
  • Amicus brief of Chamber of Commerce of the United States of America
  • Amicus brief of Western Center for Journalism (forthcoming)
  • Amicus brief of The California Endowment
  • Brief of state respondents


National Federation of Independent Business v. Sebelius

Linked with:

 Docket: 11-393

Issue: Whether the Affordable Care Act must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’s limited and enumerated powers under the Constitution.

Certiorari-stage documents


Harvey v. McNeil

Docket: 11-295

Issue: (1) Whether the court below properly held that counsel’s failure to strike an openly biased juror does not constitute objectively unreasonable performance under Strickland v. Washington and that petitioner must bear the affirmative burden of proving that he did not consent to the biased juror; (2) whether a court may presume a strategic purpose from a silent record regarding why counsel made decisions that are on their face objectively unreasonable; (3) whether the court below had the obligation to decide for itself which of two equally compelling interpretations of Florida v. Nixon was correct rather than deferring to the state court’s interpretation under the Antiterrorism and Effective Death Penalty Act and whether the state court’s interpretation of Florida v. Nixon to require that all unauthorized concessions of guilt by counsel in capital cases be evaluated under the Strickland actual-prejudice standard was correct; and (4) whether trial counsel rendered effective assistance of counsel.

Certiorari-stage documents


Armour v. Indianapolis

Docket: 11-161

Issue: Whether the Equal Protection Clause precludes a local taxing authority from refusing to refund payments made by those who have paid their assessments in full, while forgiving the obligations of identically situated taxpayers who chose to pay over a multi-year installment plan.

Certiorari-stage documents


Astrue v. Capato

Docket: 11-159

Issue: Whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.

Certiorari-stage documents


Thomas More Law Center v. Obama

Docket: 11-117

Issue: (1) Whether Congress acted within its constitutional powers in passing the individual mandate provision of the Affordable Care Act; and (2) whether the individual mandate provision of the Act is unconstitutional as applied to the individual petitioners who lack health insurance.

Certiorari-stage documents


Dallas v. L.J.

 Docket: 11-109

Issue: (1) Whether a court misapplies the flexible standard demanded by Rule 60(b)(5) when it subordinates “sensitive federalism concerns” implicated by a long-running institutional-reform decree to the court’s insistence that its previous decisions must be “dead wrong” before a state may obtain relief based on changes in the governing law; and (2) whether a federal court lacks power to enter and enforce a wide-ranging injunction based on a single state-plan element of the Adoption Assistance and Child Welfare Act of 1980, which makes federal funding conditional on a requirement that the state plan include certain elements to “gain the approval of” the Secretary of the federal Department of Health and Human Services.

Certiorari-stage documents


Hardy v. Cross

Docket: 11-74

Issue: Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Certiorari-stage documents


Wetzel v. Lambert

Docket: 11-38

Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?

Certiorari-stage documents


Cash v. Maxwell

 Docket: 10-1548

Issue: (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Certiorari-stage documents


Countrywide Home Mortgages v. Rodriguez

Docket: 10-1285

Issue: Does the Bankruptcy Code’s automatic stay, 11 U.S.C. § 362, take precedence over a mortgage lender’s right under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2609(a)(2), to require a borrower to deposit additional funds into his escrow account after filing for Chapter 13 bankruptcy protection when those funds are needed to cover the borrower’s anticipated post-petition taxes, insurance, and other escrow obligations?

CVSG Information

Invited: June 20, 2011

CVSG recommendation: Deny

Certiorari-stage documents


Harper Excavating, Inc. v. Hansen

Docket: 11-57

Issue: (1) Whether someone who would have rights or claims under the Employee Retirement Income Security Act of 1974 (ERISA) “but for” the wrongful acts of that person’s former employer has standing to sue on those claims in federal court; (2) whether Firestone Tire & Rubber Co. v. Bruch, which extends federal court jurisdiction under ERISA to “a former employee with . . . a colorable claim that he or she will prevail in a suit for benefits” implicitly endorses the “but for” basis for federal standing adopted by six of the lower circuit courts; (3) whether someone who obtains a ruling of liability for ERISA damages against his former employer accordingly has a “colorable claim” to vested benefits pursuant to the fourth prong of the Firestone test; and (4) whether standing under ERISA is determined at the time the wrongful acts complained of occurred, or instead at the time of the filing of the litigation?

Certiorari-stage documents


West Linn Corporate Park, L.L.C. v. City of West Linn

Docket:  11-299

Issue: (1) Whether the “essential nexus” and “rough proportionality” requirements of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994) apply equally to the exactions of personal property as they do to exactions of real property; and (2) whether the court below misconstrued this Court’s decision in Lingle v. Chevron USA Inc. when it refused to apply the protection of the Fifth Amendment to an exaction of personal property.

Certiorari-stage documents


Lee Investments LLC v. U.S. Fidelity & Guaranty Co.

Docket: 11-252

Issue: (1) Whether a denial of summary judgment involving purely legal issues is reviewable on an appeal from a judgment entered after trial on the merits; (2) whether a state workers’ compensation tribunal’s exclusive jurisdiction under state law bars original diversity jurisdiction of a workers’ compensation insurer’s federal court action to rescind the insurance policy filed after the injured employee has filed an action before the state’s tribunal; and (3) whether the prohibition in 28 U.S.C. § 1445(c) against removal of state court civil actions arising under the state’s workers’ compensation laws bars original diversity jurisdiction of a workers’ compensation insurer’s federal court action to rescind the insurance policy filed after the injured employee has filed a state workers’ compensation action.

Certiorari-stage documents

Recommended Citation: Kiera Flynn, Petitions to watch | Conference of November 10, 2011, SCOTUSblog (Nov. 10, 2011, 10:10 PM),