At its June 20, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of the president’s recess appointments to the National Labor Relations Board, the constitutionality of a state law requiring pre-abortion ultrasounds, whether habeas proceedings can be used to challenge sex offender registration, common law immunity for foreign officials acting on behalf of foreign states, and whether equitable tolling is available under the Hague Convention on the Civil Aspects of International Child Abduction.

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): (1) Whether the Court should modify Mickens v. Taylor to apply the automatic reversal rule in Holloway v. Arkansas where (a) the prosecution advises a trial court that the appointment of a particular lawyer in a capital case to represent multiple defendants may create a conflict of interest; (b) the appointed lawyer informs the court that he is financially unable to appoint capitally certified counsel for each of the co-defendants; (c) the court acknowledges these conflicts of interest, but delegates resolution of them to the same lawyer; (d) the conflicted attorney then advocates in a manner intended to prevent death sentences for the co-defendants; and (e) the trial court declines to intervene; and (2) whether the Louisiana Supreme Court’s opinion finding no "actual conflict" in this case demonstrates the need for this Court to address the split in the Circuit Courts concerning the standard for determining whether "an actual conflict of interest adversely affected [a] lawyer’s performance" and thereby settle an important question of federal constitutional law.



Issue(s): (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.



Issue(s): Whether parties adversely affected by agency action lack Article III standing to challenge the action if the harms are also linked to related statutory requirements or competitive pressures, or might in theory be avoided through means other than litigation.



Issue(s): (1) Whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether "implied consent" based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. 157(b).



Issue(s): (1) Whether the statutory challenges to EPA’s methodology for defining upwind states’ “significant contributions” were properly before the court, given the failure of anyone to raise these objections at all, let alone with the requisite “reasonable specificity,” “during the period for public comment,” 42 U.S.C. § 7607(d)(7)(B); (2) whether the court’s imposition of its own detailed methodology for implementing the Good Neighbor provision violated foundational principles governing judicial review of administrative decision-making; and (3) whether an upwind state that is polluting a downwind state is free of any obligations under the Good Neighbor provision unless and until EPA has quantified the upwind state’s contribution to downwind states’ air pollution problems.



Issue(s): (1) Whether the court of appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.



Issue(s): Whether the Individuals with Disabilities Education Act requires a school district to pay for a residential placement that is required to treat a child’s mental illness.



Issue(s): (1) Whether the Oklahoma Supreme Court erred in declaring the Oklahoma Ultrasound Act, which requires the performance, display, and explanation of a pre-abortion ultrasound, to be facially unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey in light of this Court’s ruling that informational requirements further "the State’s legitimate interest of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed;" (2) whether the Oklahoma Supreme Court erred in interpreting Casey as prohibiting informed consent laws requiring the performance, display and explanation of pre-abortion ultrasounds – an interpretation that directly conflicts with that of the Fifth Circuit in Texas Medical Providers Providing Abortion Services v. Lakey and the interpretation of Casey in the Eighth Circuit’s recent decisions reviewing other informed consent requirements; and (3) whether Casey requires state courts to presume all state regulations of abortion are unconstitutional under federal law, absent controlling authority from this Court.



Issue(s): (1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.



Issue(s): (1) Whether engine manufacturers have standing under Article III because they demonstrated that the Clean Air Act's waiver for the fuel additive "E15" (15% ethanol/85% gasoline) will cause them injury in fact; (2) whether prudential standing is non-jurisdictional and therefore can be waived by a government agency’s (here, EPA’s) failure to raise it; and (3) whether, in assessing a regulated entity’s Article III standing to challenge regulatory action, an apparent “option” to comply with a statutory scheme should be viewed as coercive if use of the “option” is practically required.



Issue(s): (1) Whether the offer for sale and/or sale of a product that embodies a patented invention can directly infringe a method claim under 35 U.S.C. § 271(a); and (2) whether the Federal Circuit has created an improper de facto rule precluding the use of circumstantial evidence to establish that one or more steps in a patented method have been performed for the purpose of demonstrating infringement.



Issue(s): Whether, to satisfy the “substantial assistance” requirement of Section 20(e) of the Securities Exchange Act, which authorizes the Securities and Exchange Commission to bring civil aiding-and-abetting claims, the SEC must allege and prove that the defendant’s conduct was a proximate cause of the primary violation.



Issue(s): Whether the Oklahoma Supreme Court erred in holding – without analysis or discussion – that the Oklahoma law requiring that abortion-inducing drugs be administered according to the protocol described on the drugs’ FDA-approved labels is facially unconstitutional under Planned Parenthood v. Casey. Pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat., Tit. 20, §1601 et seq. (West 2002), respectfully certifies to the Supreme Court of Oklahoma the following question: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. Further proceedings in this case are reserved pending receipt of a response from the Supreme Court of Oklahoma.



Issue(s): Whether the Fifth Circuit erred when, in direct conflict with the Eighth and Ninth Circuits, it held that the discretionary function exception to the Federal Tort Claims Act shields the government from liability for negligence that results when the failure to follow objective, scientific principles causes a decision maker to forgo action resulting in harm to persons or property.



Issue(s): Whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiffs’ allegations that those official acts violate jus cogens norms of international law.



Issue(s): Whether Section 3729(a)(1)(B) of the False Claims Act applies retroactively to cases pending on or after June 7, 2008, where no allegedly false claim for payment was pending on or after that date.



Issue(s): (1) Whether prudential standing is jurisdictional, as the D.C., Second, and Sixth Circuits have held, or whether it is non-jurisdictional and can be conceded or waived by a defending party, as the Fifth, Seventh, Ninth, Tenth, and Federal Circuits have held; (2) whether, when Congress enacts a comprehensive and integrated statute governing a single subject matter, a group of petitioners whose interests Congress expressly identified and protected are in the “zone of interests” of that statute and therefore have prudential standing to challenge an agency decision issued under it; and (3) whether regulated industries have constitutional standing to challenge a rule that, as an integral part of a comprehensive regulatory scheme, imposes substantial new burdens on those industries.


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 or under what circumstances a federal agency may cancel a vacancy for the purpose of hiring a non-veteran over a disabled veteran who is ranked higher on a list of qualified candidates.



Issue(s): (1) Whether the decision of the Supreme Court of Nevada holding that the Nevada Attorney General’s action for damages under the Nevada state antitrust law is preempted as a matter of law by federal regulation of natural gas markets is in conflict with decisions of the Seventh and Ninth Circuits in Illinois ex rel Burris v. Panhandle Eastern Pipeline Co. and E. & J. Gallo Winery v. EnCana Corp.; and (2) whether it was error for the Nevada Supreme Court to base its “field preemption” conclusion on this Court’s decision in Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd. Of Mississippi without regard to subsequent limitations of that decision in Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp. and subsequent changes in the relevant statutory and regulatory framework enacted by Congress and the Federal Energy Regulatory Commission.



Issue(s): (1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3).



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 intangible things can be “deliver[ed]” under Section 302(a)(2) of the Labor Management Relations Act, which makes it unlawful for employers “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization.” 29 U.S.C. § 186(a)(2).



Issue(s): Whether the Second Circuit erred by failing to apply as written a federal statute, 11 U.S.C. § 524(g)(4)(A)(ii), governing asbestos-related claims in chapter 11 bankruptcy proceedings, by construing the phrase “arises by reason of” as invoking only a legal standard rather than a factual inquiry, thereby limiting its scope in a manner that is contrary to its plain terms and that frustrates the congressional purposes of the statute.



Issue(s): Whether an employer and union may violate Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business.



Issue(s): (1) Whether police officers, employed by the Puyallup Indian Tribe, but trained, certified, and cross-commissioned by the state of Washington, and armed, equipped, and provisioned by the United States, are subject to the Constitution, U.S. civil rights laws, and state tort law; (2) whether the Shelter or Conceal Clause of the Treaty of Medicine Creek, and additional sources of federal and state law, preempts any claims of qualified immunity by individual Puyallup tribal police officer defendants in a suit for violation of the Constitution, U.S. civil rights laws, and state tort law.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of June 20, 2013, SCOTUSblog (Jun. 13, 2013, 10:05 PM),