At its April 12, 2013 Conference, the Court will consider petitions seeking review of issues such as Second Amendment limits on licensing restrictions for carrying handguns outside the home, suits by private insurers under the Medicare Secondary Payer Act, the constitutionality of public functions in religious buildings, and the enforcement of judgments against foreign states

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 a district court’s discretionary decision to dismiss a case on non-merits grounds without addressing federal subject-matter jurisdiction is subject to abuse-of-discretion review on appeal.



Issue(s): Whether the Americans with Disabilities Act of 1990 preempts the California Disabled Persons Act's mandatory fee awards to prevailing defendants, who successfully defeat a claim of disability discrimination, including one based on parallel ADA violations.



Issue(s): Whether private litigants may enforce the ninety-day administrative time limit established by 42 C.F.R. § 431.244(f), which generally requires state Medicaid agencies to take final administrative action on requests for Medicaid fair hearings within ninety days of the date on which the Medicaid enrollee requests a fair hearing, through lawsuits brought under 42 U.S.C. § 1983.



Issue(s): (1) Whether due process requires notice to absentee class members of a settlement under Federal Rule of Civil Procedure 23(b)(2) in all cases or, at least, where the class’s rights are waived; (2) whether this case is an apt vehicle to decide a key issue left open in Wal-Mart Stores v. Dukes, and to resolve an inter-circuit conflict; (3) whether a class can be certified under Wal-Mart Stores v. Dukes where disability- necessitated reliance on a mobility device varies immensely among class members, and no single injunction can resolve a claim; and (4) whether, under Lujan v. Defenders of Wildlife, Arizona Christian School Tuition Org. v. Winn, and City of Los Angeles v. Lyons, the named plaintiffs, uninjured in California, have Article III standing to impose a national waiver or to insert California relief into their case in a settlement-only certification.



Issue(s): (1) Whether the Second Amendment secures a right to carry handguns for self-defense outside the home; and (2) whether state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense.



Issue(s): 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.



Issue(s): Whether e-mails stored by an e-mail provider after delivery are in “electronic storage” under the Stored Communications Act, 18 U.S.C. §§ 2701 et seq.



Issue(s): Whether the Eighth Circuit erred by concluding that Younger abstention is warranted not only when there is a related state proceeding that is “coercive” but also when there is a related state proceeding that is, instead, “remedial.”



Issue(s): (1) Whether federal law with respect to the presumption of prejudice applicable in jury spoliation cases is “clearly established” under 28 U.S.C. § 2254(d)(1), as determined by this Court's precedents and in light of a well-established circuit conflict concerning that presumption; and (2) whether a state court rejection of the jury bias claim in this case is “contrary to” or an “unreasonable application of” any such “clearly established” federal law.



Issue(s): (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.



Issue(s): Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.



Issue(s): (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.



Issue(s): (1) Whether post office sidewalks that are open to the public are public fora, so that a prohibition of First Amendment activities must be narrowly tailored to further a significant governmental interest; and (2) even if post office sidewalks are not public fora, whether the 30 C.F.R. § 232.1(h)(4), the regulation banning signature gathering on petitions, is reasonable when it simultaneously permits the collection of signatures in voter registration drives on the same sidewalks, and when the justification for the latter provision (that it is the solicitation of a signature, rather than its collection, that may be disruptive) directly contradicts the justification for the former provision (that it is the collection of a signature, rather than its solicitation, that may be disruptive).



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.


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

Issue(s): Whether the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(2), establishes a cause of action for private insurers operating Medicare Advantage plans to sue tortfeasors for double damages.



Issue(s): (1) Whether persons with Article III standing to object to criminal subpoenas of confidential information have a First Amendment or Due Process right to be heard and to present evidence in support of their objections; and (2) whether the lower court applied the correct legal standard to subpoenas issued by foreign governments pursuant to Mutual Legal Assistance Treaties and 18 U.S.C. § 3512.



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): (1) Whether, in light of the Court's decision in Global-Tech Appliances, Inc. v. SEB S.A, the jury in a federal criminal case must be instructed that willful blindness substitutes for actual knowledge only when (a) the defendant subjectively believes that there is a high probability that a fact exists and takes "deliberate actions" to avoid learning of that fact, and (b) the defendant's conduct surpasses recklessness with respect to the fact; (2) whether jurors must agree unanimously on a specific overt act to return a guilty verdict under the general federal conspiracy statute, 18 U.S.C. § 371, or it is sufficient if all jurors agree that some overt act was committed even if they cannot agree on which act; and (3) whether, in a criminal trial, when the prosecution seeks to bolster the inculpatory testimony of a principal cooperating witness with portions of a hearsay memorandum by the witness' associate, exclusion of exculpatory and explanatory portions of the same memorandum violates Federal Rule of Evidence 106 as interpreted in light of Beech Aircraft Corp. v. Rainey, and this Court's compulsory process and due process decisions.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of April 12, 2013, SCOTUSblog (Apr. 9, 2013, 8:49 PM),