At its Conference on October 17, 2014, the Court will consider petitions seeking review of issues such as the standard of review for exhaustion under the Prison Litigation Reform Act, the admissibility of lay testimony that is based on specialized knowledge, and proof of causation in a prosecution for insider trading.

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.

14-168

Issue(s): (1) Whether, under the Employee Retirement Income Security Act of 1974 ("ERISA"), a service provider that contracts with an employer to provide services to an ERISA plan exercises “control” over “plan assets” when the service provider (a) contracts with the employer for compensation for services provided to the plan, and (b) elects to exercise its contractual right to receive that compensation, rather than waiving that right; and (2) whether under the plain language of section 408 of ERISA, a provider of services to an ERISA plan can be held to have violated section 406 of ERISA, which states that a fiduciary to an ERISA plan may not “deal with the assets of the plan in his own interest or for his own account,” when it has received only “reasonable compensation” for its services.

14-82

Issue(s): (1) Whether an inmate’s subjective lack of awareness of existing grievance procedures excuses his failure to exhaust his administrative remedies, where there is no evidence that jail officials prevented, thwarted, or hindered him from knowing about them or otherwise prevented him from filing a grievance; and (2) whether a reviewing court may decline to apply the clear error standard of review to a district court's findings of fact on administrative exhaustion under the Prison Litigation Reform Act.

14-29

Issue(s): (1) Whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the relevant inside information must have been a “significant factor” in the defendant’s decision to buy or sell, or whether -- as the court below held -- mere “knowing possession” of inside information suffices for a criminal conviction; (2) whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the “fiduciary duty” element must be proved under well-established principles of state law, or whether -- as the court below held -- courts may define and impose the applicable fiduciary duty as a matter of federal common law; and (3) whether exculpatory testimony given by a witness during a deposition in a closely related federal enforcement proceeding is admissible under Federal Rule of Evidence 804(b) in a subsequent criminal trial when the witness is unavailable, or whether -- as the court below held -- such testimony may be excluded merely because it was given in a civil rather than criminal proceeding.

13-1505

Issue(s): Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, a plaintiff must plead that a statement of opinion not only contains false statements of material facts or omits material facts required to make the statements in the registration statement not misleading, but also that the speaker actually knew that the statements were false or misleading, even though the Court has held, in Ernst & Ernst v. Hochfelder, that under § 11 “the issuer of the securities is held absolutely liable,” without regard to fault.

13-1491

Issue(s): Whether a witness may give opinion testimony based in part on specialized knowledge and in part on personal experience, including answering counterfactual hypothetical questions, without satisfying the reliability and disclosure requirements for expert testimony of Federal Rule of Evidence 702, Federal Rule of Criminal Procedure 16, and/or Federal Rule of Civil Procedure 26.

13-1424

Issue(s): Whether, in enacting the Clean Water Act, Congress intended to strip the states of the ability to punish harm to their wildlife resulting from oil spills.

13-1406

Issue(s): Whether attorney abandonment, which Maples v. Thomas held is an “extraordinary circumstance” equitably excusing a resulting failure to appeal a denial of state habeas relief, is likewise an “extraordinary circumstance” warranting reentry of a judgment under Federal Rule of Civil Procedure 60(b) where the abandonment caused the failure to appeal a denial of federal habeas relief.

 

Relists

14-212

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.

14-1

Issue(s): (1) Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state); and (2) whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.

13-1516

Issue(s): Whether it is an “adverse employment action” for a discrimination claim, or a “materially adverse action” for a retaliation claim, when an employer grants an employee’s request for a job transfer.

13-1487
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.

13-1479

Issue(s): Whether, where one of the claims submitted to a jury is set aside after trial, a court must vacate the jury's general verdict, or may apply a “harmless error” exception.

13-1433

Issue(s): (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

13-1428

Issue(s): Whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.

13-1318

Issue(s): (1) Whether a federal complaint is subject to dismissal when it fails to cite the statute authorizing the cause of action; (2) whether the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure; and (3) whether a federal complaint should be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983.

13-1175
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): (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of October 17, SCOTUSblog (Oct. 16, 2014, 10:10 AM), https://www.scotusblog.com/2014/10/petitions-to-watch-conference-of-october-17/