At its September 30, 2013 Conference, the Court will consider petitions seeking review of issues such as the termination of parental rights under the Indian Child Welfare Act, the constitutionality of Virginia’s “crimes against nature” statute, protections on free speech interests of government employees, and a free exercise challenge to workers’ compensation requirements.

This is our third of three installments of “Petitions to watch” for the September 30 Conference.  (Earlier installments are here and here). We feature 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 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, P.C. represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether the Due Process Clause is violated by the Florida Supreme Court’s new rule of preclusion, which permits Engle v. Liggett Group, Inc. class members to establish petitioners’ liability without being required to prove essential elements of their claims or establishing that those elements were actually decided in their favor in a prior proceeding.



Issue(s): Whether, under the Fair Labor Standards Act of 1938, an employer may escape liability for unpaid time worked based on an employee’s failure to formally report extra work time, when the employer knew or should have known that the employee had worked during that time.



Issue(s): Whether law-enforcement agents accused of retaliatory prosecution in violation of the First Amendment should receive qualified immunity where the officers could reasonably have believed that the prosecution was supported by probable cause.



Issue(s): (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.



Issue(s): Whether there can be an exception to the deferential arbitrary and capricious standard of review not previously recognized by this Court when an ERISA plan fiduciary interprets plan terms which refer to outside materials.



Issue(s): Whether, when a state court cites and applies the correct standard from Batson v. Kentucky for assessing whether a habeas petitioner has established discrimination in jury selection, the state court’s failure to expressly address “all relevant circumstances” in a written opinion means that the state court’s decision is “unreasonable” and entitled to no deference under the Antiterrorism and Effective Death Penalty Act.



Issue(s): Whether a plaintiff who purchases directly from a member of a price-fixing conspiracy is necessarily a “direct purchaser” under Illinois Brick Co. v. Illinois(as the Third and Seventh Circuits have held), or whether instead the plaintiff must show that the conspirators agreed to set the specific price the plaintiff paid and not merely that the conspiracy inflated that price by anticompetitive means (as the Ninth Circuit held below).



Issue(s): Whether the Federal Arbitration Act preempts a state-law rule invalidating arbitration provisions, but not contracts more generally, that lack mutuality of obligation.



Issue(s): Whether offering, negotiating, and entering into a contract in Scandinavia to provide services using a potentially patented device constitutes an “offer to sell” or “sale” of an actually patented device “within the United States,” under 35 U.S.C. § 271(a).



Issue(s): Whether the court of appeals erred in refusing to follow the holdings of the Eighth and Sixth Circuits involving identical trademark litigation and not giving those rulings preclusive effect – and doing so in ways that disregard the district courts’ inherent authority to consider preclusion and do serious violence to Federal Rule of Civil Procedure 15 and the proper standards other circuits routinely follow when reviewing decisions to permit amendments of pleadings.



Issue(s): Whether ERISA’s statutory protections and broad preemption provision protect designated beneficiaries from claims by an estate to enforce a purported waiver of those benefits incorporated into a state law divorce decree and property settlement agreement when the deceased plan participant had the opportunity to change her designated beneficiary but did not do so.



Issue(s): (1) Whether a party asserting a “new value” defense to a preference claim pursuant to 11 U.S.C. § 547(c)(1) must prove the specific value “in money or money’s worth” of the assets transferred to the debtor, as the Third, Fifth, Ninth, Tenth and Eleventh Circuits have held, or a mere approximation of value, as the Fourth Circuit below and the Eighth Circuit, as well as inconsistent Third and Tenth Circuit decisions, have held.


Disclosure: John Elwood, a frequent contributor to this blog, is counsel to the petitioner in the case.

Issue(s): (1) Whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “onecase- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing. CVSG: 10/07/2013.



Issue(s): (1) Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . . to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).



Issue(s): Whether the Virginia courts unreasonably applied Lawrence v. Texas in determining that Virginia’s “crimes against nature” statute is not facially unconstitutional or unconstitutional as applied to an adult male’s solicitation of a minor female, outside the home, to perform oral sodomy.



Issue(s): (1) Whether, contrary to 42 U.S.C. § 7410’s express limit on the EPA’s disapproval authority and decisions of other courts of appeals, the EPA may substitute its own policy preferences for a state’s about the appropriate means of controlling air pollution within that state, without identifying any applicable “requirement of th[e] [Clean Air Act]” with which the state’s chosen means would interfere; and (2) whether the panel erred under SEC v. Chenery Corp., by upholding agency action based on, and by purporting to “defer” to, an interpretation of the Clean Air Act that the EPA itself not only never adopted – but in fact expressly rejected.



Issue(s): (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.



Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.



Issue(s): (1) Whether a defendant can be convicted of the offense of honest-services-fraud-by-bribery as defined in this Court’s decision in United States v. Skilling, in the absence of a quid pro quo bribery agreement; and (2) whether the First Amendment permits jurors to consider evidence of a lobbyist’s legal campaign contributions, permissibly made to express appreciation toward and provide election assistance to political officials, as probative of whether the lobbyist engaged in corruption by putting other things of value to similar use.



Issue(s): Whether, in order to survive a motion to dismiss, a plaintiff asserting a claim under Section 11 of the Securities Act of 1933 premised on an alleged violation of SEC regulations must plead facts establishing that the allegedly omitted information is material under Basic Inc. v. Levinson and Matrixx Inc. v. Siracusano.



Issue(s): (1) Whether 23 U.S.C. § 409, which prohibits the evidentiary use of reports “compiled or collected for the purpose of identifying, evaluating or planning” safety enhancements “pursuant to” three federal highway programs, bars the admission of National Crossing Inventory reports and railroad accident reports collected from railroads by the Federal Railroad Administration for the purpose of identifying railroad crossings in need of safety enhancements; and (2) whether 49 U.S.C. § 20903, which prohibits the evidentiary use of a federally mandated railroad accident report in an action “for damages resulting from a matter mentioned in the report,” bars the admission of reports of accidents at a railroad crossing in a tort suit arising out of an accident at the crossing.



Issue(s): (1) Whether, by electing not to define the term “arbitration,” Congress evinced an intent to respect relevant state-law definitions of “arbitration,” so long as applying them would not undermine the Federal Arbitration Act’s policy goals; and (2) whether, if it is proper to disregard relevant state-law definitions of “arbitration” in favor of one created by federal judges, that definition should exclude alternative dispute resolution that does not necessarily (a) resolve the plaintiff’s entire cause of action (b) through an adversarial process.



Issue(s): (1) Whether the policymaker exception analysis from Elrod v. Burns and Branti v. Finkel should apply to employee speech cases that do not involve political patronage; and (2) whether a presumption in favor of protecting the free speech interests of a government employee should apply in a case not involving political patronage and where the employee is speaking as a private citizen on a matter of public concern and the speech does not directly criticize her employer or any identified policy of her employer.



Issue(s): (1) Whether Congress, by expressly excluding incumbent local exchange carriers (ILECs) from the Pole Attachments Act’s definition of “telecommunications carrier,” intended to exclude attachments by ILECs to the poles of other utilities from the protections of the Act; and (2) whether the FCC provided a reasoned justification for re-interpreting the Pole Attachments Act to extend its protections to attachments by ILECs to the poles of other utilities.



Issue(s): Whether when an officer informs a driver that “refusal to submit to a test is a crime,” a driver's acquiescence to the officer's demand to conduct a warrantless search and seizure of the driver's urine qualifies as constitutionally valid consent, as a matter of law.



Issue(s): Whether the respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).



Issue(s): Whether the First Amendment prohibits a government official from dismissing an employee for lack of political allegiance when political allegiance would be an appropriate requirement for the employee’s statutory or formal job description but not for the job the employee actually performs.



Issue(s): Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the prosecutor's subsequent decision to use the evidence.



Issue(s): Whether Michigan’s restrictions on beverage sales unconstitutionally discriminate against interstate commerce because they preclude the sale of an interstate product within Michigan solely because that product is sold in other states, and burden only companies that engage in business in more than one state.



Issue(s): Whether 42 U.S.C. § 1983 requires that a government official have engaged in conduct that caused a constitutional violation, or can that official be held liable simply because he learned that a subordinate violated a constitutional right and did not take action in response.



Issue(s): (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63, prohibits a state court from considering the "best interests of the child" when determining whether "good cause" exists to defy the transfer of an ongoing child welfare case; and (2) whether ICWA requires a state court to treat a motion to terminate parental rights as a "new proceeding" for the purposes of determining whether "good cause" exists to defy the transfer of an ongoing child welfare case.



Issue(s): (1) Whether the Confrontation Clause prohibits a chief medical investigator from testifying about objective facts in an autopsy report earlier by another medical examiner when the report was not admitted into evidence, was not certified or sworn, and was not prepared for the primary purposes of accusing the targeted individual of a crime or of providing evidence at a criminal trial; (2) whether the definition of the constitutional term "witnesses" in Crawford v. Washington should be overruled or modified; and (3) whether any constitutional error in the admission of an out-of-court statement is harmless beyond a reasonable doubt when it is more beneficial to the defense than the state, a testifying expert was available for cross examination about the statement, and the evidence of guilt was overwhelming.



Issue(s): (1) Whether the extraterritorial branch of the dormant Commerce Clause doctrine should be limited to the price-affirmation and anti-takeover contexts, or abolished entirely as a stand-alone test; and (2) whether the extraterritorial branch of the dormant Commerce Clause doctrine extends to a nondiscriminatory statute that is focused on in-state activity in order to prevent fraud occurring in the enacting state.



Issue(s): (1) Whether the extraterritorial branch of the dormant Commerce Clause doctrine should be limited to the price-affirmation and anti-takeover contexts; (2) whether the extraterritorial doctrine should be abolished entirely; and (3) whether a state statute's extraterritorial effect should result in the law’s per se invalidity.



Issue(s): (1) Whether the United States Court of Appeals for the Third Circuit and other courts of appeals which have interpreted the materiality standard of Brady v. Maryland to include evidence inadmissible at trial if such material could have led to the discovery of admissible evidence have expanded the scope of Brady in a manner contrary to Wood v. Bartholomew, and, in so doing, have substituted mere admissibility for the requirement that to be "material" undisclosed evidence must present a "reasonable probability" that the result of the trial would have been different had the evidence been disclosed, and in a manner which, in the instant case, would have required the prosecution to search the entire universe of police reports to find those reports which referenced, but did not charge, a prosecution witness; (2) whether the United States Court of Appeals for the Third Circuit, by directing the district court to evaluate Johnson's claim "in light of the Third Circuit opinion," has required the district court to accept characterizations of the allegedly suppressed evidence which in some instances are contrary to this Court's teachings, such as the weight to be given affidavits solicited by habeas counsel long after the verdict was obtained, and which, in other instances, are factually inaccurate.



Issue(s): (1) Whether the “hot pursuit” doctrine articulated in United States v. Santana applies where police officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.



Issue(s): (1) Whether the Free Exercise Clause requires a plaintiff to demonstrate that the challenged law singles out religious conduct or has a discriminatory motive, as the First, Second, Fourth, and Eighth Circuits and Montana Supreme Court have held, or whether it is instead sufficient to demonstrate that the challenged law treats a substantial category of nonreligious conduct more favorably than religious conduct, as the Third, Sixth, Tenth, and Eleventh Circuits and Iowa Supreme Court have held; and (2) whether the government regulates “an internal church decision” in violation of the Free Exercise Clause, Hosanna Tabor v. EEOC, when it forces a religious community to provide workers’ compensation insurance to its members in violation of the internal rules governing the community and its members.



Issue(s): Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership.



Issue(s): Whether, when the government lawfully seizes an individual’s cash property and is later required by law to return it, it may refuse to return interest.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of September 30 (Part 3), SCOTUSblog (Sep. 24, 2013, 10:05 PM),