At its November 20, 2012 Conference, the Court will consider petitions seeking review of issues such as whether an insanity defense must be available in criminal cases, the Sixth Amendment and non-unanimous jury verdicts, attorney’s fees in cases involving the National Vaccine Injury Compensation Program, and the interpretation of the Chemical Weapons Convention Implementation 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.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s): Whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases, an issue this Court reserved in Clark v. Arizona, footnote 20.



Issue(s): Whether the waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, applies to a claim that does not challenge the legality of “agency action” or “final agency action” within the meaning of the Administrative Procedure Act -- or even any government action or inaction of any kind -- but instead challenges the validity of government-owned property based solely on actions by private parties.



Issue(s): Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and forty-five years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).



Issue(s): Whether employees of the IRS Office of Appeals who hold “Collection Due Process” (“CDP”) hearings and who issue determinations are “inferior Officers” of the United States under the Appointments Clause of the Constitution (Art. II, sec. 2, cl. 2) such that they need to be appointed under its procedures.



Issue(s): Whether Eighth Amendment harmless-error review applies when a capital-sentencing jury is precluded from considering relevant mitigating evidence.



Issue(s): Whether the Fourth Circuit, in conflict with this Court’s decision in United States v. Sun-Diamond Growers of California and the D.C. Circuit’s en banc decision in Valdes v. United States, correctly affirmed petitioner’s convictions, which rested on a jury instruction defining “official acts” as any and all activities that are “part [of] a public official’s position” based on “settled practice.”



Issue(s): (1) Whether the Ninth Circuit erred in holding, contrary to the decisions of five other Circuit Courts of Appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” Eastern Enterprises v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and (2) whether the Ninth Circuit erred in holding, contrary to a decision of the Federal Circuit, that it lacked jurisdiction over petitioners’ takings defense, even though petitioners, as “handlers” of raisins under the Raisin Marketing Order, are statutorily required under 7 U.S.C. § 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.



Issue(s): (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.


Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s): Whether the Sixth Amendment right to jury trial, as applied to the states through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict.



Issue(s): Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorneys’ fees and costs.



Issue(s): Whether this Court should address an issue it reserved in Serfass v. United States and Sanabria v. United States, on whether “a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense” forfeits or waives his double jeopardy protections.



Issue(s): Whether the lower courts' preclusion of critical disputed issues absent any determination that those issues had been previously decided, in departure from traditional and heretofore universal preclusion law, violates the Due Process Clause of the Fourteenth Amendment.



Issue(s): Whether FilmTec Corp. v. Allied-Signal, Inc.'s “automatic assignment” rule should be overruled given the doubts about its validity expressed by three Justices of the United States Supreme Court in Board of Trustees of the Leland Stanford Jr. University v. Roche Molecular Sys., Inc., and in light of the reservation of that issue by the Court’s opinion therein.



Issue(s): Whether the safe harbor established by the Annunzio-Wylie Anti-Money Laundering Act, 31 U.S.C. § 5318(g)(3)(A), provides absolute immunity or only qualified immunity from claims that arise from the filing of a suspicious activity report.



Issue(s): (1) Whether the lower court – unlike courts in Arkansas and Michigan – erred in deeming Scholastic’s customers (schoolteachers) to be a physical presence of the company, even though the company does not retain, compensate, or control them in any way; (2) whether the lower court erred by denying Scholastic’s Commerce Clause defense despite recognizing that schoolteachers do not act “on behalf of” the company when they help their young students buy books as part of a classroom order; and (3) whether the lower court erred by establishing a new Commerce Clause standard for the exercise of state taxing authority over non-resident retailers, rather than deferring to Congress to enact legislation under its Commerce Clause powers.



Issue(s): (1) Whether Justice Brandeis’s opinion in Turner v. United States supports the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., be revised and discarded, at least in the context of tribal alcoholic beverage commercial activities; (2) whether 18 U.S.C. § 1161 and Rice v. Rehner exclude tribal alcoholic beverage endeavors from sovereign immunity protection; and (3) whether tribal sovereign immunity precludes a suit against an Indian Tribe which has obtained a state liquor license and has operated an alcoholic beverage facility pursuant to that liquor license and in the process has violated state law subjecting a license holder to liability.



Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of November 20, 2012, SCOTUSblog (Nov. 17, 2012, 7:02 PM),