At its June 13, 2013 Conference, the Court will consider petitions seeking review of issues such as whether a police officer may constitutionally draw a firearm during a Terry stop, the appellate standard of review for the Tax Court’s determination of mixed questions of law and fact, disparate impact claims under the Fair Housing Act, and violations of the Indian Gaming Regulatory Act outside Indian lands.

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 Ninth Circuit erred in allowing the bankruptcy trustee to surcharge the debtor’s constitutionally protected homestead property.



Issue(s): Whether, consistent with the standard of review employed by other Circuit Courts of Appeals, but in direct conflict with the decision below, the United States Court of Appeals for the First Circuit should have reviewed for abuse of discretion the District Court’s determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors.



Issue(s): (1) Whether the Ninth Circuit correctly held – in conflict with the decisions of this Court and other circuits – that the Fourth Amendment imposes a mechanistic rule that police officers are forbidden from drawing their firearm during a Terry stop absent certain, predetermined "special circumstances;" and (2) whether the Ninth Circuit correctly held – in conflict with the decisions of the Supreme Court – that the Fourth Amendment rule at issue was “clearly established,” such that it would have been clear to every reasonable officer in the situation that Officer Chin faced that his conduct was unlawful.



Issue(s): Whether the standard of appellate review for the Tax Court’s determination of a mixed question of law and fact, such as whether an expenditure is an ordinary and necessary business expense, is clear error or de novo.



Issue(s): (1) Whether the majority panel opinion order conflicts with Bell v. Thompson by staying the issuance of the Ninth Circuit’s mandate based on its reconsidering a motion it had already denied prior to certiorari review; (2) whether the order erred by applying Martinez v. Ryan rather than Cullen v. Pinholster when the district court did not find a procedural default, but rather considered Schad’s claim of ineffective assistance of counsel on the merits (that the state post-conviction court had denied on the merits), and alternative considered the merits of the claim in light of new evidence first presented in the federal habeas proceedings; (3) whether the order erred by remanding to the district court to reconsider the new evidence that it had already considered.



Issue(s): (1) Whether a conspiracy charge under 18 U.S.C. § 371 which alleges violations of both the defraud and offense prongs of that statute presents one or two offenses; (2) whether an ends-of-justice finding necessary to grant an excludable continuance under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7), can be inferred based solely on the context in which the district court granted a continuance rather than the court’s reasoning “on the record" and (3) whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing, rather than the Guidelines in effect at the time of the offense, when the newer Guidelines create a significant risk that a defendant will receive a higher sentence.



Issue(s): Whether a district court’s decision on the merits that leaves unresolved a request for contractual attorney’s fees is a “final decision” under 28 U.S.C. § 1291, which provides that courts of appeals have jurisdiction of appeals from final decisions of the district courts.



Issue(s): (1) Whether governmental agency interference with a person’s ability to access and beneficially use his vested water right under threat of prosecution, in part by requiring a permit not authorized or contemplated by any statute or regulation and in derogation of the very nature of the property right, is properly analyzed as a per se taking under Loretto v. Teleprompter CATV Corp. rather than as a regulatory taking under Penn Central Transportation Co. v. New York City; (2) whether the Forest Service or Bureau of Land Management can alter the congressional grant or recognition of water rights and rights-of-way pursuant to the Act of July 26, 1866 by administratively redefining the scope and purpose of the easements or by superimposing a special use permitting requirement for their maintenance; and (3) whether the fencing of water sources in which Petitioners had stockwater and other rights, intended to and which was sufficient to prevent livestock access to the source for at least a period of time, is a physical taking subject to Loretto and Arkansas Game and Fish Commission v. United States, without regard to whether some residual amount of water could escape.



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 the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under Section 271(a).



Issue(s): 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.



Issue(s): (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.


Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.

Issue(s): Whether immunity under the Aviation and Transportation Security Act may be denied without a determination that the air carrier's disclosure was materially false.



Issue(s): Whether disparate impact claims are cognizable under the Fair Housing Act.


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

Issue(s): (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.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of June 13, 2013, SCOTUSblog (Jun. 5, 2013, 9:32 PM),