At its Conference on February 21, 2014, the Court will consider petitions seeking review of issues such as rights of eighteen- to twenty-year-olds under the Second Amendment, police use of nontrivial force against a passively resisting arrestee, Federal Power Act requirements for interstate electric rates, preemption of local ordinances banning renting housing to illegal aliens, and whether hosting poker games is a federal felony.

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 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 an autopsy report created as part of a homicide investigation, and asserting that the death was indeed caused by homicide, is “testimonial” under the Confrontation Clause framework established in Crawford v. Washington.



Issue(s): (1) Whether it is – or should be – clearly established that police officers per se violate the United States Constitution when they use nontrivial force in the context of passive resistance, regardless of the surrounding circumstances; and (2) whether the Ninth Circuit’s unique treatment of tasers – “intermediate force as a matter of law,” which “must” be justified by the government interest involved – is inconsistent with this Court’s holdings in Graham v. Connor, Saucier v. Katz, and Scott v. Harris, or in the best interest of society.



Issue(s): Whether Evans v. Michigan – which held that a finding of insufficient evidence precludes retrial under the Double Jeopardy Clause even if the finding is based on a legally erroneous analysis – or the cases cited in Evans, overruled Lockhart v. Nelson's holding that a post-trial finding of insufficient evidence only precludes retrial under the Double Jeopardy Clause if it is based on a face-value assessment of all the evidence admitted, not just the evidence properly admitted.



Issue(s): Whether the court of appeals exceeded its authority to grant a writ of habeas corpus when it completely disregarded and ignored this Court’s well-established precedent of Woodford v. Visciotti and its progeny, by finding a state court’s application of Beck v. Alabama contrary to United States Supreme Court precedent, although the state court expressly recognized, cited and applied the appropriate federal standard of review but its analysis was not a model of clarity; and (2) whether the decision of the court of appeals finding error under Beck based solely on speculative and non-existent evidence is so clearly erroneous, and in conflict with other lower federal courts, that this Court should, if not grant plenary review, at least grant certiorari, vacate the court of appeals’ decision, and remand with instructions to deny habeas corpus relief.


Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to an amicus in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s): (1) Whether 18 U.S.C. § 1955, which outlaws certain “gambling business[es]” and provides that gambling “includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein,” makes it a federal felony to host poker games; and (2) whether including-but-not-limited-to clauses merely provide examples without in any way limiting the term being defined (as five circuits have held) or whether they restrict the term being defined to things of the same general kind as those enumerated (as four circuits and many state courts of last resort have held).



Issue(s): Whether a federal court has authority in extraordinary circumstances to bar a state from reprosecuting a defendant when state officials violate a federal habeas order and engage in continuing misconduct that substantially prejudices the defendant’s ability to secure a fair retrial.



Issue(s): Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.



Issue(s): Whether the court below erroneously held, in conflict with the decisions of six other circuits, that a person who exercises some authority or control over the assets of an ERISA plan is a fiduciary with respect to that plan only if he is alleged to have “mismanaged” the plan’s assets.



Issue(s): Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.



Issue(s): (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental house is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted; and (4) whether a local ordinance prohibiting the employment of unauthorized aliens is impliedly conflict preempted.



Issue(s): Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.



Issue(s): (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; and (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted.



Issue(s): (1) Whether a safe berth provision in a voyage charter contract is a guarantee of the safety of the berth, rather than a duty of due diligence, and whether such a contractual provision runs to the benefit of a third-party vessel owner when there is no evidence of the contracting parties’ intent to benefit the vessel owner; and (2) whether a wharf owner’s tort duty to provide a safe approach extends to routes selected exclusively by a vessel’s navigators in federally maintained waters over which the wharf owner does not exercise dominion or control.



Issue(s): Whether the Secretary of State’s issuance of a passport based on a determination of a person’s United States citizenship is conclusive proof of the passport holder’s citizenship such that it may not be collaterally attacked.



Issue(s): Whether Section 546(e) of the Bankruptcy Code eliminates the statutory power to avoid payments related to a securities transaction when a financial institution acts as a mere conduit for the transferred property, as the Second, Third, Sixth, and Eighth Circuits have held, or whether the financial institution must have a beneficial interest in the transferred property, as the Eleventh Circuit has held.



Issue(s): (1) Whether the cost-causation principle underlying the “just and reasonable” standard of the Federal Power Act permits the socialization of costs across a regional transmission network without regard to the actual costs caused or benefits received by customers required to pay those costs; and (2) whether an administrative agency may concededly rely upon extra-record evidence without providing the parties notice and an opportunity to rebut that evidence.



Issue(s): (1) Whether the Federal Power Act’s requirements that interstate electric rates be “just and reasonable,” and non-preferential, 16 U.S.C. § 824d(a)–(b), require that charges associated with regional power-grid upgrades be allocated to consumers on a basis proportional with the benefits those consumers will receive from the upgrades (as the D.C. Circuit has held) or instead allow charges to be socialized, such that consumers must pay an equal share for power-grid upgrades that overwhelmingly benefit others (as the Seventh Circuit held here); and (2) whether the Federal Energy Regulatory Commission must conduct an evidentiary hearing under 16 U.S.C. § 824d when utilities and state agencies come forward with admissible evidence creating material questions of fact regarding the costbenefit analysis of new proposed charges associated with regional power-grid upgrades anticipated to cost billions of dollars.



Issue(s): Whether California’s “Gentry rule” – under which class-action waivers in employment arbitration agreements are invalid if “a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration,” Gentry v. Superior Court of L.A. County, is preempted by the Federal Arbitration Act in light of this Court’s decisions in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant.


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

Issue(s): Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.



Issue(s): Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.



Issue(s): Whether Doyle v. Ohio, which prohibits impeachment use of an accused’s silence after Miranda v. Arizona warnings, should be revisited and overruled.



Issue(s): (1) Whether the Second Amendment right to bear arms for self-defense in case of confrontation includes the right to bear arms in public; (2) Whether that right to bear arms extends to responsible, law-abiding eighteen- to twenty-year-old adults; and (3) whether Texas’s ban on responsible, lawabiding eighteen- to twenty-year-old adults bearing handguns in public for self-defense violates the Second Amendment and the Equal Protection Clause.



Issue(s): Whether the Board of Immigration Appeals’ interpretation of “a particular social group” as requiring an element of “social visibility” is entitled to deference under Chevron U.S.A. Inc. v. National Resources Defense Council as held by seven circuits, or is an arbitrary or impermissible interpretation of the statute, as the Third and Seventh Circuits hold.



Issue(s): Whether a nationwide, class-based, categorical ban on meaningful access to the quintessential means to exercise the right to keep and bear arms for self-defense can be reconciled with the Second Amendment, the equal protection guarantee, and this Court’s precedents.



Issue(s): Whether the Sixth Circuit violated the Antiterrorism and Effective Death Penalty Act by holding that “some form” of Waller v. Georgia's specific four-part test was clearly established for partial courtroom closures and that a state court could unreasonably apply the modified test in the partial-closure context.



Issue(s): (1) Whether, as some courts have held, reviewing courts are required to accord “great deference” to unexplained Batson v. Kentucky rulings where the trial court does not demonstrate on the record that it has evaluated “all of the circumstances that bear upon the issue of discrimination,” or whether, in light of Snyder v. Louisiana and as other courts have held, reviewing courts should not defer to the trial court’s unexplained determination of a Batson objection; (2) whether a reviewing court may defer to a trial court’s Batson ruling where the trial court acknowledges that it is unable to independently evaluate the prosecutor’s contested, demeanor-based explanation and denies a Batson motion by simply accepting the prosecutor’s stated reason after observing that it comports with racial and gender stereotypes the judge believes to be true.



Issue(s): (1) Whether the First Amendment permits civil courts to retroactively impose a “trust” on church property based on church canons that were never embodied in any secular instrument of property ownership and did not comply with state law at the time of their adoption; (2) whether the Contracts Clause permits civil courts resolving church property disputes to apply changes to state statutory law retroactively.



Issue(s): (1) Whether the of Federal Rule of Civil Procedure 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis; and (2) whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis.



Issue(s): (1) Whether the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) is satisfied by the purported “efficiency” of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a product liability class may be certified where it is undisputed that most members did not experience the alleged defect or harm.



Issue(s): (1) Whether after Comcast Corp. v. Behrend the absence of a showing that injury can be proved on a classwide basis precludes class certification under Federal Rule of Civil Procedure 23(b)(3); and (2) whether at the class certification stage of litigation a district court must analyze the admissibility of expert testimony under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.



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): Whether consumers have standing to challenge the constitutionality of laws regulating the sale of firearms.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of February 21, SCOTUSblog (Feb. 14, 2014, 3:00 PM),