At its Conference on June 26, 2014, the Court will consider petitions seeking review of issues such as the constitutionality of California’s Low Carbon Fuel Standard under the Dormant Commerce Clause, the application of the “mass action” provision of the Class Action Fairness Act, the First Amendment rights of broadcasters, and establishing a violation of the Sixth Amendment right to a public trial.

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 Section 211(c)(4)(B) of the Clean Air Act, 42 U.S.C. § 7545(c)(4)(B), which authorizes California to prescribe emissions controls with respect to “any fuel” “at any time,” bars some or all of petitioners' dormant commerce clause challenges to California's Low Carbon Fuel Standard; and (2) whether petitioners' challenges, in 13-1149, to the treatment of 2011 California crude oil sales, including the challenge remanded to the district court, are moot, where the challenged regulatory provisions were never actually applied to petitioners or others and have been superseded by substantially different provisions.


Issue(s): (1) Whether the Court of Appeals erred in upholding the Pension Benefit Guaranty Corporation’s post hoc rationalization in litigation that, under 29 U.S.C. § 1344(a)(3), a benefit derives from a plan provision “in effect” five years prior to termination only if the benefit was paid or payable at the start of the five-year period; and (2) whether the court of appeals erred in upholding the Pension Benefit Guaranty Corporation’s determination that, under 29 U.S.C. § 1344(a)(3), the benefit deriving from plan provisions “under which such benefit would be the least” is the mathematically lowest benefit amount existing during any of the five years before termination.


Issue(s): (1) Whether federal courts lack jurisdiction under the Administrative Procedure Act to review an agency action that is arbitrary and capricious or an abuse of discretion when the statute authorizing the action does not impose specific requirements governing the exercise of discretion; (2) whether federal agencies can evade review of their actions under the National Environmental Policy Act by designating their actions as “conservation efforts,” when the record shows that the action will cause significant adverse environmental effects; and (3) whether an agency commits prejudicial error when it makes materially false statements in an environmental impact statement, and then asserts that it would have made the same decision even if the false statements had been corrected.


Issue(s): Whether a defendant, in order to establish a violation of his Sixth Amendment right to a public trial, must demonstrate not only that the trial court failed to follow the procedure set forth in Waller v. Georgia, but also that a member of the public was actually excluded from the courtroom.


Issue(s): Whether California’s Low Carbon Fuel Standard is unconstitutional because it discriminates against out-of-state fuels and regulates interstate and foreign commerce that occurs wholly outside of California.


Issue(s): (1) Whether the Ninth Circuit erred in concluding that California’s Low Carbon Fuel Standard does not facially discriminate against interstate commerce; and (2) whether the Ninth Circuit erred in concluding that the Low Carbon Fuel Standard is not an extraterritorial regulation.


Issue(s): (1) Whether the Court should overrule Red Lion Broadcasting Co. v. Federal Communications Commission’s outdated rationale for diminishing the First Amendment protection of broadcasters; (2) whether, in light of the Court’s decision in Citizens United v. Federal Election Commission, strict scrutiny applies to laws prohibiting broadcasters from transmitting paid political messages; and (3) whether, consistent with the prevailing approach in the courts of appeals, a ban on speech fails intermediate scrutiny if the only evidence before Congress supposedly linking the ban to the interest that the government seeks to advance consists of guesswork lacking any concrete factual support.


Issue(s): Whether the Tax Injunction Act, which provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State,” bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.


Issue(s): Whether plaintiffs’ request, pursuant to state court procedures, to coordinate numerous multi-plaintiff lawsuits involving claims of more than 100 persons against dozens of non-resident defendants for all purposes constitutes a “mass action” removable under the Class Action Fairness Act.


Issue(s): Whether, under the Class Action Fairness Act of 2005, which authorizes removal to federal court if plaintiffs’ claims “are proposed to be tried jointly,” a motion by plaintiffs to coordinate or consolidate their cases before a single trial judge to avoid inconsistent judgments and promote judicial economy constitutes such a proposal.


Issue(s): Whether the California Court of Appeal erred when it deepened an acknowledged circuit split and held—contrary to this Court's decisions in Buckman Co. v. Plaintiffs’ Legal Committee and PLIVA, Inc. v. Mensing; the decisions of the Fifth and Eleventh Circuits in Morris v. PLIVA, Inc. and Guarino v. Wyeth, LLC; and the plain language of the federal Food, Drug, and Cosmetic Act (“FDCA”)—that federal law does not preempt state tort claims predicated on allegations that a generic drug manufacturer violated the FDCA by failing to immediately implement or otherwise disseminate notice of labeling changes that the United States Food and Drug Administration had approved for use on a generic drug product's brand-name equivalent. CVSG: 12/16/2014.


Issue(s): Whether the Ninth Circuit failed to apply the deferential standard of review required by 28 U.S.C. § 2254(d) when it granted federal habeas relief from a state murder conviction on the ground that the prosecutor's request for an aiding-and-abetting instruction at the jury-instruction conference violated a putative constitutional right to prior notice of the government's theory of prosecution - a right that has been recognized in the court of appeals' own precedents, but not established by any holding of this Court.


Issue(s): Whether a federal equity receiver has standing to assert claims on behalf of the receivership's creditors generally.


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

Issue(s): Whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.


Issue(s): Whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.


Issue(s): Whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.


Issue(s): Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

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

Issue(s): Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit.


Issue(s): (1) Whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.


Issue(s): (1) Whether the Fourth Circuit contravened Wal-Mart Stores, Inc. v. Dukes by holding that discretionary decisions by hundreds of supervisors can serve as the basis for a nationwide class action because "Wal-Mart is limited to the exercise of discretion by lower-level employees, as opposed to upper-level, top-management personnel"; and (2) whether a court of appeals may exercise "pendent appellate jurisdiction" to review an unappealable interlocutory ruling that requires the court to decide legal and factual issues distinct from the ruling over which it has jurisdiction and unrelated to the power of the district court to enter the appealable order.


Issue(s): Whether the plain text of the Immigration and Nationality Act, which states that a noncitizen is ineligible for cancellation of removal if he has been convicted of an offense “relating to a controlled substance," requires that a drug paraphernalia conviction involve or relate to a controlled substance that is actually listed in the federal schedules of controlled substances in order to render a noncitizen ineligible for cancellation of removal.


Issue(s): Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” CVSG: 10/07/2013.



Issue(s): Whether the filed rate doctrine and Supremacy Clause permit a state public service commission to “trap” federally approved costs with a utility by recognizing the prudency of obtaining electric power from a plant in another state, but then barring the utility from recovering the Federal Energy Regulatory Commission-approved transmission costs of importing that power. CVSG: 03/10/2014.


Issue(s): (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision. CVSG: 05/27/2014.


Issue(s): (1) Whether the Trademark Trial and Appeal Board’s finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the Board’s finding of a likelihood of confusion absent strong evidence to rebut it. CVSG: 01/13/2014.


Issue(s): (1) Whether the civil remedy provision of the Anti-Terrorism Act, 18 U.S.C. § 2333, supports claims against defendants based on theories of secondary liability, and requires plaintiffs to establish that a defendant’s support provided to a terrorist organization was a proximate cause of the plaintiffs’ injury; (2) whether U.S. courts have personal jurisdiction over defendants who, acting abroad, provide material support to a terrorist organization that attacks the territorial United States and the defendant intends to provide support to the organization, knows of the organization’s objective and history of attacking U.S. interests, and can foresee that its material support will be used in attacks on the United States. CVSG: 12/16/2013.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel on an amicus brief in support of the petitioners in this case.

Issue(s): Whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions. CVSG: 12/02/2013.

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 the Second Circuit erred when, in conflict with decisions of this Court and other circuits and in disregard of international comity and due process, it failed to vacate severe sanctions for non-production of records located in countries where production would subject the Bank to criminal penalties, hobbling the Bank’s defense; and (2) whether the courts below erred by failing to dismiss plaintiffs’ Alien Tort Statute claims, as the Second Circuit’s and this Court’s decisions in Kiobel v. Royal Dutch Petroleum require. CVSG: 10/21/2013.

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Recommended Citation: Maureen Johnston, Petitions to watch | Conference of June 26, SCOTUSblog (Jun. 25, 2014, 5:00 PM),