At its March 15, 2013 Conference, the Court will consider petitions seeking review of issues such as the scope of qualified research expenses for tax credits, the constitutionality of an amendment to a state constitution prohibiting affirmative action, the effect when a parolee commits new offenses, and Hague Convention standards governing the return of abducted children.

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 work for or 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.


Issue(s): Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.



Issue(s): 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.



Issue(s): Whether 17 U.S.C. § 204(a)’s requirement that all transfers of copyright ownership, including exclusive licenses, be in writing can be evaded by the simple expedient of treating alleged oral exclusive licenses as implied nonexclusive licenses based on the “totality of the parties’ conduct.”



Issue(s): Whether, when considering how much to reduce a defendant’s sentence for substantial assistance pursuant to Federal Rule of Criminal Procedure 35(b), a court (i) cannot consider the sentencing factors set forth in 18 U.S.C. § 3553(a), as held by the Sixth Circuit; (ii) may consider those factors only to the extent that they yield a smaller sentence reduction than the defendant’s assistance alone would warrant, as held by the Seventh, Eighth, Tenth, and Eleventh Circuits; or (iii) may consider those factors to grant either a smaller or a larger sentence reduction, as held by the Fourth and Ninth Circuits.



Issue(s): 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.



Issue(s): (1) Whether, in determining the scope of the qualified research expenses tax credit provided under Internal Revenue Code § 41, the court of appeals erred in holding that “supplies used in the conduct of qualified research” includes only the cost of additional supplies specifically purchased for the research, thereby largely eliminating the credit afforded for supplies used in plant-scale testing; and (2) whether the court of appeals erred in deferring to the government’s position with respect to the meaning and application of one its own regulations, without independently conducting any searching inquiry into what that the regulations mean, in a case where the government advanced that position as a financially interested party.



Issue(s): When appellant wishes to take funds that may be legally contributed to political action committees and party committees, and instead contribute those same funds directly to additional candidate committees, whether the three-judge district court erred in dismissing her facial and as-applied challenge to Section 307(b) of the Bipartisan Campaign Reform Act, 2 U.S.C. § 441a(a)(3)(A), which imposes a limit of $37,500 on total contributions to all individual candidates.


Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents.

Issue(s): Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. (Kagan, J., recused.)



Issue(s): (1) Whether the Treaty of Amity between the United States and Iran also provides a cause of action to sue the foreign sovereign in the courts of the company’s “home” country, so that respondent McKesson may sue Iran in the United States and an Iranian company may sue the United States in Iran; and (2) whether a foreign sovereign’s interpretation of its domestic law is entitled to deference, as several other appellate courts have concluded, and the court below therefore erred by failing to defer to Iran’s interpretation of Iranian law to provide a cause of action for companies doing business in Iran only in Iranian courts.



Issue(s): (1) Whether respondent Pacific Rivers Council (PRC) has Article III standing to challenge the Forest Service’s 2004 programmatic amendments to the forest plans governing management of 11 Sierra Nevada Forests when PRC failed to establish that any of its members was imminently threatened with cognizable harm because he or she would come into contact with any parcel of forest affected by the amendments; (2) whether PRC’s challenge to the Forest Service’s programmatic amendments is ripe when PRC failed to identify any site-specific project authorized under the amended plan provisions to which PRC objects; and (3) whether the National Environmental Policy Act required the Forest Service, when adopting the programmatic amendments, to analyze every type of environmental effect that any project ultimately authorized under the amendments throughout the 11 affected forests might have if it was reasonably possible to do so when the programmatic amendments were adopted, even though any future site-specific project would require its own appropriate environmental analysis before going forward.



Issue(s): Whether a government employee’s truthful testimony under oath qualifies as speech “as a citizen on a matter of public concern,” requiring a balancing of the interests surrounding the speech and its consequences in order to assess the constitutionality of the adverse government action.



Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”), when the state court has adjudicated just one prong of a multipronged standard, is AEDPA deference properly applied to the unadjudicated prongs, (as the Seventh Circuit held below, and the Third and Eleventh Circuits have suggested), or are the unadjudicated prongs considered by the federal court de novo (as the Fifth, Sixth, Ninth, and Eleventh Circuits have held).



Issue(s): (1) Whether the Centers for Medicare and Medicaid Services correctly calculated psychiatric-hospital reimbursement payments in fiscal years 2003 through 2008 based on a permissible interpretation of 42 U.S.C. § 1395ww(b)(3)(A)(ii) and the agency’s implementing regulation; and (2) whether the Court should revisit the rule articulated in Auer v. Robbins, of deferring to an agency’s interpretation of its own regulations.



Issue(s): (1) Whether Section 6662 of the Internal Revenue Code, which prescribes a penalty for an underpayment of federal income tax that is “attributable to” an overstatement of basis in property, applies to an un­derpayment resulting from a determination that a transaction lacks economic substance because the sole purpose of the transaction was to generate a tax loss by artificially inflating the taxpayer’s basis in property; and (2) whether the district court had jurisdiction in this case under 26 U.S.C. § 6226 to consider the substantial valuation misstatement penalty.



Issue(s): Whether the initial authorized sale outside the United States of a patented item terminates all patent rights to that item.



Issue(s): Whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result.



Issue(s): Whether the Second Circuit erred in concluding, in direct conflict with a decision from the First Circuit on the same issue, that a representative plaintiff has standing to assert on behalf of absent class members claims for relief that the representative plaintiff lacks standing to assert on its own behalf.



Issue(s): Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.



Issue(s): Whether the National Labor Relations Board has imposed an impermissible burden on property rights in contravention of Babcock v. Wilcox Co and Lechmere Inc. v. NRLB by adopting an access rule which permits individuals who have no employment relationship with the property owner to nonetheless distribute union handbills on the owner’s premises.



Issue(s): Whether a federal habeas court must grant Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) deference to both components of a state court’s merits adjudication of a defendant’s Strickland v. Washington claim, when the state court addressed only one of the components in denying relief.



Issue(s): Whether, when a federal parolee commits a new offense on parole, he is entitled to an individualized determination of whether the time spent from his parole to his revocation will count against his original sentence.



Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.



Issue(s): (1) Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute "agency action" for purposes of Section 7(a)(2) of the Endangered Species Act, which requires consultation to ensure that federal “agency action” does not exterminate listed species; and (2) whether the federal courts lack jurisdiction over the action in light of changed circumstances.


Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of March 15, 2013, SCOTUSblog (Mar. 11, 2013, 9:40 AM),