This is the third installment of “Petitions to watch” featuring cases up for consideration at the Court’s September 29 “Long Conference.”  Because the Court has not considered new petitions since the end of June, the number of petitions slated for review at the September 29 Conference is quite large – more than at any other Conference of the year. Therefore, we are posting our list of petitions to watch at the “Long Conference” in three separate installments. This final installment includes petitions seeking review of issues such as state bans on same-sex marriage and the appealability of an order denying confirmation of a bankruptcy plan.  The first two installments are available here and here.

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 the Fourteenth Amendment prohibits a state from defining and recognizing marriage as only the legal union between one man and one woman.


Issue(s): (1) Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit states to define marriage as a legal union between one man and one woman; and (2) whether the Due Process and Equal Protection Clauses permit states to treat as void same-sex marriages from other jurisdictions.


Issue(s): Whether the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbid the Commonwealth of Virginia from defining marriage as the union of a man and a woman.


Issue(s): Whether the Fourteenth Amendment compels Virginia to license and recognize same-sex marriages.


Issue(s): Whether Virginia violates the Due Process and Equal Protection Clauses by denying the right of marriage to same-sex couples and by refusing to recognize same-sex marriages lawfully performed outside of Virginia.


Issue(s): Whether the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbid the State of Oklahoma from defining marriage as the union of a man and a woman.


Issue(s): Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.


Issue(s): (1) Whether, when a police officer approaches a residence to conduct a “knock and talk,” the Fourth Amendment requires the officer to go to the “front door” even where it reasonably appears that some other entrance is also customarily used by visitors; and (2) whether the court of appeals erred in holding that such a rule was “clearly established” for purposes of qualified immunity.


Issue(s): Whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.


Issue(s): Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.


Issue(s): Whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute.


Issue(s): Whether operation of a “stay-put” provision in 20 U.S.C. § 1415(j) – which requires that a child whose educational program under the Individuals with Disabilities Education Act is under dispute to remain in his or her then-current placement while statutory “proceedings” to resolve the dispute are pending – terminates upon entry of a final judgment by a state or federal trial court in favor of the school district, as the D.C. and Sixth Circuits have held, or whether it continues until completion of any subsequent appeal of that judgment, as the Third and Ninth Circuits have held. CVSG: 4/10/2015.

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

Issue(s): Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.


Issue(s): Whether an order denying confirmation of a bankruptcy plan is appealable.


Issue(s): (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.


Issue(s): (1) Whether the Fourth Circuit erred in holding, in conflict with the Ninth Circuit, that the Shipping Act’s exemption from federal antitrust laws of any “agreement or activity relating to the foreign inland segment” of “through transportation” between the United States and a foreign country” does not apply where a collusive agreement relating to the “foreign inland segment” indirectly affects prices for overall “through transportation”; and (2) whether the Fourth Circuit erred in holding, in conflict with this Court's jurisprudence and with decisions of other courts, that the False Claims Act, which provides that a person who submits to the government a false claim for payment is liable for treble damages plus “a civil penalty of not less than $5,000,” requires -- and the Eighth Amendment's Excessive Fines Clause condones -- mechanical imposition of a separate civil penalty for each invoice submitted to the government (here, over 9,000), without regard to the defendant's culpability, even where the invoices are “false” only by operation of law under United States ex rel. Marcus v. Hess.


Issue(s): (1) Whether it is error for a federal appellate court to undertake the same analysis for penalty phase prejudice in capital cases arising from both weighing states, where juries impose death sentences only after determining that aggravating circumstances outweigh mitigating factors, and non-weighing states, where juries are instructed that they may return a sentence less than death for any reason or no reason at all, even after finding a statutory aggravator; and (2) whether the Eleventh Circuit violated the Eighth Amendment by improperly “weighing” aggravation against mitigation evidence in Mr. Bishop’s case rather than applying the non-weighing prejudice test consistent with Georgia’s capital sentencing statute articulated in Zant v. Stephens.


Issue(s): Whether a veteran whose disability picture “more nearly approximates,” 38 C.F.R. § 4.7, but “does not satisfy” the criteria required for a higher rating is ineligible for that higher rating.


Issue(s): Whether a party should be required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable under Section 3 of the Federal Arbitration Act; (2) whether, if prejudice is required, what constitutes sufficient “prejudice” in order to find “waiver;” and (3) whether state law contractual defenses to enforcement of an arbitration agreement preserved under Section 2 of the Act, such as defenses of waiver or estoppel, provide a defense to an application for either a stay under Section 3 of the Act or an order compelling arbitration under Section 4.


Issue(s): Whether, when applying the Chandris, Inc. v. Latsis thirty-percent rule—that, ordinarily, a qualifying “seaman” under the Jones Act must spend thirty percent or more of his time in service of a vessel in navigation—a court may consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or whether a court must categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held.


Issue(s): Whether the statutory bar for “public use” of an invention under 35 U.S.C. § 102(b) (2006) (pre-America Invents Act) (current version at 35 U.S.C. § 102(a)(1)(2012)) broadly bars a patent when an innovator company allows any public access to its invention even if the invention is not actually used in public for its intended purpose.


Issue(s): (1) Whether the False Claims Act’s pre-2010 “public-disclosure bar,” 31 U.S.C. § 3730(e)(4) (2009), prohibits claims that are “substantially similar” to prior public disclosures, or instead bars a claim only if the plaintiff’s knowledge “actually derives” from prior disclosures; (2) whether the False Claims Act’s “first-to-file” bar, 31 U.S.C. § 3730(b)(5), precludes a later-filed action that is based on the same facts as an earlier-filed action only so long as the earlier case is still pending; and (3) whether the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287, suspends the limitations period for civil claims, such as a False Claims Act claim brought by a private party.


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 plaintiff may state a claim under Section 11 of the Securities Act of 1933, which provides for strict liability “on account of” defective registration statements, where he made an irrevocable investment decision to acquire his securities before a registration statement covering the issuance of those securities existed. CVSG: 08/27/2014.


Issue(s): Whether a claim that ERISA plan fiduciaries breached their duty of prudence by offering higher-cost retail-class mutual funds to plan participants, even though identical lower-cost institution-class mutual funds were available, is barred by 29 U.S.C. § 1113(1) when fiduciaries initially chose the higher-cost mutual funds as plan investments more than six years before the claim was filed.


Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | The “Long Conference” of September 29 (Part III), SCOTUSblog (Sep. 17, 2014, 1:30 PM),