At its Conference on January 16, 2015, the Court will consider petitions seeking review of issues such as liability for a priest’s failure to report inappropriate sexual conduct, scope of the exhaustion requirement in a takings claim, the Heck v. Humphrey bar in excessive force cases, and state bans on same-sex marriage

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.

14-628

Issue(s): (1) Whether a plaintiff waives its right to appeal under Caterpillar, Inc. v. Lewis by amending its complaint, after denial of a motion to remand, to add new and distinct federal claims – thereby independently creating undisputed federal-question jurisdiction; and (2) whether a federal court's adjudication of the majority of a plaintiff's claims on summary judgment and dismissals with prejudice creates sufficient considerations of “finality, efficiency, and economy” to foreclose appellate review of the denial of the motion to remand; and (3) whether federal courts have subject matter jurisdiction over claims of inventorship involving a pending patent application, as the Federal Circuit has held, or only over claims of inventorship involving an issued patent, as the Fifth Circuit held here.

14-567

Issue(s): (1) Whether, when evaluating if a state court’s decision is based upon an unreasonable determination of the facts in light of the evidence before the state court under 28 § U.S.C. 2254(d)(2), the clear and convincing standard of Section 2254(e)(1) governs the determination of unreasonableness; (2) whether the state court decision, finding no deficient performance, constituted an unreasonable application of Strickland v. Washington under Section 2254(d)(1); and (3) whether the lower court misapplied Harrington v. Richter to preclude de novo review where there was uncontested evidence sufficient to rebut the Richter presumption and both parties agreed that the claims were not adjudicated by the state court.

14-545

Issue(s): Whether the Ninth Circuit, in holding that this action should proceed, properly second-guessed and rejected the executive branch's U.S. foreign policy determinations.

14-540

Issue(s): Whether public standard-setting and patent-pool licensing agreements that long predate the Clayton Act's four-year limitations period may indefinitely be subjected to antitrust challenge based on the defendants' ongoing collection of royalties, where the plaintiff, a longtime licensee, delays filing suit to challenge those pre-limitations agreements until the market has come to depend upon the licensed technology.

14-439

Issue(s): (1) Whether the exhaustion requirements of Williamson County Regional Planning Commission v. Hamilton Bank apply to any constitutional claim – including the procedural due-process claims in this case – when that claim shares facts in common with a possible Takings Clause claim; and (2) whether federal courts must impose special exhaustion requirements on Takings Clause claims even where, as here, the taking is “final.”

14-220

Issue(s): Whether a court can pivot liability for a priest's failure to report certain communications to public authorities on the court's own determination of whether those communications constitute “confession per se,” or whether it must respect the church's own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication.

14-151

Issue(s): (1) Whether the Heck v. Humphrey bar applies to Section 1983 claims for unreasonable seizures predicated on the use of excessive force by police officers; (2) whether, if a person is convicted of violating a California statute which criminalizes deterring or preventing an executive officer from performing any duty imposed upon such officer by law, if multiple acts of resistance could form the basis for the conviction and the record is not clear as to which act(s) formed the basis of the conviction, the success in a subsequent Section 1983 action does “necessarily imply” the invalidity of the conviction such that it must be barred by Heck v. Humphrey; and (3) whether the Heck v. Humphrey bar should be applied differently if the underlying conviction was based on a jury verdict rather than a plea.

 

Relists

14-574

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-571

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-562

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-556

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

14-378
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, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

14-341

Issue(s): Whether an employee’s waiver in an arbitration agreement of a collective or “representative action” under the California Private Attorneys General Act, Cal. Labor Code § 2698 et seq., is so distinguishable from a “class action” waiver that it is immune from the otherwise preemptive effect of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as held by this Court in AT&T Mobility v. Concepcion.

14-292

Issue(s): (1) Whether the former Texas special issues for death penalty sentencing do provide – as the Texas Court of Criminal Appeals held – or do not provide – as the Fifth Circuit has held – an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character, such that failure to provide a separate question violates the Eighth and Fourteenth Amendments under this Court’s jurisprudence in Penry v. Lynaugh and Penry v. Johnson; (2) whether a conviction aided by the prosecution's failure to produce evidence that contradicted its theory and showed that the evidence it did rely upon and the resulting jury arguments were false violates the Due Process Clauses of the Fifth and Fourteenth Amendments under this Court's Brady v. Maryland jurisprudence; and (3) whether executing a defendant who has already served more than thirty years on death row while exercising his legal rights in a non-abusive manner serves any penological purpose and amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

14-275

Issue(s): (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm'n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

14-271

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.

14-200
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).

14-185

Issue(s): Whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner's request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

 

CVSGs

13-1241

Issue(s): (1) Whether the political question doctrine bars state-law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would necessarily require examining sensitive military judgments; (2) whether the Federal Tort Claim Act's “combatant-activities exception,” 28 U.S.C. § 2680(j), preempts state-law tort claims against a battlefield support contractor that arise out of the U.S. military's combatant activities in a theater of combat; and (3) whether the doctrine of derivative sovereign immunity bars state-law tort claims against a private contractor performing delegated public functions where the government would be immune from suit if it performed the same functions. CVSG: 12/16/2014.

13-1067

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.

13-956

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.

13-817

Issue(s): (1) Whether the political question doctrine bars state-law tort claims against a battlefield support contractor operating in an active war zone when adjudication of those claims would necessarily require examining sensitive military judgments; (2) whether the Federal Tort Claims Act's “combatant-activities exception,” 28 U.S.C. § 2680(j), preempts state-law tort claims against a battlefield support contractor that arise out of the U.S. military's combatant activities in a theater of combat. CVSG: 12/16/2014.

 

Posted in Cases in the Pipeline

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of January 16, SCOTUSblog (Jan. 15, 2015, 12:57 PM), https://www.scotusblog.com/2015/01/petitions-to-watch-conference-of-january-16/