At its Conference on May 15, 2014, the Court will consider petitions seeking review of issues such as forensic pathology reports under the Confrontation Clause, monetary sanctions against the government for defiance of court orders, the constitutionality of a deferred tax on the extraction and manufacture of coal, and an arbitrator’s failure to disclose conflicts of interest.

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): (1) Whether an Article III court’s final judgment may be reversed based on the decision of an administrative agency; and (2) whether a final determination of liability that has been affirmed on appeal may be reversed based on the decision of an administrative agency merely because an appeal regarding the post-verdict remedy is pending.


Issue(s): (1) Whether, for purposes of determining when an entity is an “agent” of a “foreign state” under the first clause of the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), the express definition of “agency” in the FSIA, the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba, or common law principles of agency, control; and (2) whether, under the first clause of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2), a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States or the preceding sale of the ticket in the United States for the travel entirely outside the United States. CVSG: 12/15/2014.


Issue(s): Whether, contrary to Strickland v. Washington -- which stated that a reviewing court must presume that the jury followed the law in rendering its verdict -- a claim of Strickland prejudice can be predicated upon the possibility that the jury might not have followed the law in finding the defendant guilty of the charged offense beyond a reasonable doubt.


Issue(s): (1) Whether an arbitrator’s failure to disclose facts creating a reasonable impression of partiality warrants vacating an arbitration award pursuant to 9 U.S.C. § 10(a)(2), or whether an arbitration award should stand despite an arbitrator’s failure to disclose conflicts of interest unless a reasonable person would have to conclude that the arbitrator was partial to one party to the arbitration; and (2) whether a party waives a challenge to an arbitrator’s failure to disclose conflicts of interest only if it knows of the conflicts and fails to raise them during the arbitration, or whether a party waives such a challenge unless it fully investigates the arbitrator’s undisclosed conflicts, and objects to the arbitrator’s participation, during the arbitration.

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

Issue(s): Whether an otherwise unconstitutional tax imposed upon the sale of goods in the stream of export commerce can be saved from invalidation under the Export Clause of the United States Constitution, Art. I § 9, cl. 5, by recharacterizing it as a deferred tax on manufacturing.


Issue(s): Whether, when an Employee Retirement Income Security Act plan permits the use of retained asset accounts to settle life-insurance claims but leaves discretion to the insurer to determine the interest rates and other features of those accounts, the insurer ceases to act as a fiduciary when it creates the account (as the Second and Third Circuits have held) or its subsequent discretionary acts remain subject to ERISA’s protections (as the First Circuit has held).


Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment allows a social worker to take temporary custody of a child, without advance notice and pre-deprivation evidentiary hearing, when the social worker has probable cause to believe that the child has been abused; and, if not, whether the contrary legal principle was clearly established in 2002; and (2) whether the Sixth Circuit erred by conducting its qualified-immunity analysis of the children’s Fourth Amendment claim at a high level of generality and holding that the “absence” of case law specifically mentioning social workers was enough to clearly establish that the Fourth Amendment applies in the context of child-safety seizures by social workers in the same manner as in the criminal-law context.

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

Issue(s): Whether this Court should adopt a per se rule providing that an arbitrator commits "misconduct . . . in refusing to hear evidence pertinent and material to the controversy" within the meaning of Section 10(a)(3) of the Federal Arbitration Act when an arbitrator excludes the sole relevant and non-cumulative evidence in support of a fact material to the controversy, without a need for the party to show prejudice or bad faith.


Issue(s): (1) Whether the Ninth Circuit improperly held that Martinez v. Ryan provides a “more lenient rule . . . for excusing procedural default” than does Coleman v. Thompson, and encompasses both cause and prejudice to excuse the procedural default of a habeas claim; and (2) whether the Ninth Circuit improperly removed the prejudice prong from an analysis of ineffective assistance of post-conviction counsel as provided in Martinez and Strickland v. Washington.


Issue(s): (1) Whether the Mississippi Supreme Court erred in holding that the Confrontation Clause of the Sixth Amendment permits a forensic analyst to inform the jury of the results of forensic testing of DNA evidence that she did not participate in or observe, so long as she is “familiar with each step of the complex testing process conducted by” the non-testifying expert and “conducted her own [comparison] analysis” of the DNA profiles generated by the non-testifying expert; (2) whether the court below erred in holding that the Eighth and Fourteenth Amendments permit the exclusion from a capital trial of a defendant’s proffered evidence of the harsh and suffering prison conditions he would face if the jury elected a sentence of life imprisonment instead of execution, where such evidence rebuts the argument that the death penalty is needed to hold the defendant accountable, rebuts the state’s suggestion of future dangerousness, and is constitutionally relevant mitigation evidence; and (3) whether a violation of the Eighth Amendment’s requirement that jurors be permitted to form a reasoned moral response to the defendant’s background, character, and crime may be excused as harmless error, as the court below and some United States courts of appeals have found, or whether such constitutional error must require automatic reversal of the death sentence, as other United States courts of appeals have held.


Issue(s): Whether a court has the inherent authority to impose monetary sanctions against the government despite the doctrine of sovereign immunity, when the government acts in bad faith by making misrepresentations to the court and by violating and ignoring the terms of an otherwise valid and enforceable court order.


Issue(s): Whether forensic pathology reports are testimonial for purposes of the Confrontation Clause.

Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case through the Stanford Law School Supreme Court Litigation Clinic.

Issue(s): Whether the Confrontation Clause of the Sixth Amendment permits a forensic analyst who did not observe or participate in any of the forensic testing at issue to tell the jury the conclusions that another analyst set forth in a testimonial forensic report – so long as the testifying analyst offers an “independent opinion” that, based on reviewing the other analyst’s report and notes, she agrees with other analyst’s conclusions.


Issue(s): Whether the United States Constitution prohibits a state from taxing all the income of its residents -- wherever earned -- by mandating a credit for taxes paid on income earned in other states.


Issue(s): (1) Whether the Confrontation Clause prohibits a government expert, who merely reviewed a nontestifying forensic analyst’s certified report, notes, and results and did not personally conduct or observe any of the relevant analyses, from testifying regarding the analyst’s procedures and conclusions and opining on the analyst’s results; and (2) whether the Seventh Circuit erred by applying a harmless-error standard that ignores the impact that testimony admitted in violation of the Confrontation Clause, which the government relied on in closing arguments, had on the jury, and instead focused on the sufficiency of the remaining evidence, directly conflicting with this Court’s precedent and that of other federal courts of appeals.



Issue(s): Whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.


Issue(s): (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.


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.

Posted in Cases in the Pipeline

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of May 15, SCOTUSblog (May. 7, 2014, 9:45 AM),