At its Conference on December 12, 2014, the Court will consider petitions seeking review of issues such as removability under the Class Action Fairness Act, the constitutionality of an Arizona law limiting the availability of abortions performed with medication, and the presumption of judicial vindictiveness under North Carolina v. Pearce.

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, if a state appellate court rejects an unpreserved federal claim after assessing whether the “plain error” exception to state preservation requirements permitted review, but does not explain its reasoning, a federal habeas court should conclude that the state court ruled on the federal claim’s merits, such that federal court review is appropriate.


Issue(s): Whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).


Issue(s): Whether, as the Ninth Circuit held, in open and admitted conflict with other courts of appeals, a district court may exclude expert testimony as unreliable only when it is based on a “faulty methodology or theory,” or whether, as the Third Circuit and other circuits have held, “any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible.”


Issue(s): Whether an abortion regulation that is rationally related to the state's interest in maternal health creates an undue burden and is therefore invalid (a) only when it erects a substantial obstacle to obtaining a pre-viability abortion, as the Fifth and Sixth Circuits held, or (b) when “the extent of the burden a law imposes on a woman's right to abortion” outweighs “the strength of the state's justification for the law,” as the Ninth Circuit held in the decision below.


Issue(s): Whether conspiracy to commit a robbery, absent any overt act in furtherance of the crime, is itself a violent felony presenting a serious potential risk of physical injury justifying an enhanced sentence under the Armed Career Criminal Act.


Issue(s): Whether a reviewing court may presume that a trial judge acted “vindictively” in giving a defendant a higher sentence after resentencing, when no higher court had vacated the trial judge's original sentence.


Issue(s): (1) Whether a suit brought by a private party on behalf of himself and other similarly situated individuals is a “class action” subject to the diversity jurisdiction provisions of the Class Action Fairness Act of 2005; and (2) whether aggrieved employees’ claims to statutory penalties and attorney’s fees may be aggregated for purposes of satisfying the amount-in-controversy requirement of the diversity jurisdiction statute.


Issue(s): Whether the Fourth Amendment permits a police officer to request a driver to produce his license during a lawfully-initiated traffic stop but after reasonable suspicion or probable cause has dissipated, where the officer's conduct is reasonable under the totality of circumstances and the stop is not unreasonably prolonged.

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

Issue(s): Whether the Board of Governors of the Federal Reserve System’s regulation establishing a maximum allowable debit card interchange fee, 12 C.F.R. § 235.3, unlawfully permits banks to recover costs forbidden by the governing statute, 15 U.S.C. § 1693o-2(a)(4)(B).


Issue(s): Whether the Second Circuit – in a two-to-one panel decision that disregarded the considered opinion advanced by the United States as amicus – erred in holding that the Employee Retirement Income Security Act of 1974 (ERISA) preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. CVSG: 05/19/2015.


Issue(s): (1) Whether a companion authorization issued by the general counsel of the National Labor Relations Board in conjunction with an order from the board itself, purporting to possess a quorum and take the same action on its own behalf, suffices to authorize a Section 10(j) proceeding commenced while the board itself lacked a quorum to authorize it; and (2) whether the familiar four-factor test for preliminary injunctive relief articulated in Winter v. Natural Resources Defense Council, Inc. applies to preliminary injunctive relief sought in a petition under Section 10(j) of the National Labor Relations Act, as a majority of circuits have held, or whether an entirely different and profoundly deferential standard applies, as the courts below held.



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


Issue(s): (1) Whether the Ninth Circuit erred when it held - in conflict with the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Tenth Circuits, but in accord with the Seventh Circuit - that a district court's order striking or refusing to consider a qualified immunity motion is not subject to interlocutory appeal, even when it subjects a public official to unlimited discovery for the duration of a lawsuit; and (2) whether petitioners are entitled to qualified immunity.


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.


Issue(s): Whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” CVSG: 10/30/2014.


Posted in Cases in the Pipeline

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of December 12, SCOTUSblog (Dec. 9, 2014, 5:00 PM),