At its Conference on February 20, 2015, the Court will consider petitions seeking review of issues such as tour-guide licensing requirements under the First Amendment, state laws banning false political speech, and mandatory minimum sentences under the Eighth Amendment.

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 Federal Circuit has erred in blocking all appellate review of United States Patent & Trademark Office (USPTO) decisions made under 35 U.S.C. §§ 312 and 315, when the only limit in the statute is in Section 314, which is expressly limited to decisions made “under this section” – thus giving the USPTO complete and unreviewable authority under these two sections to reject assertions that the agency previously erred in granting patents.


Issue(s): Whether New Orleans's tour-guide licensing requirements violate the First Amendment.


Issue(s): (1) Whether the standing requirements of Article III apply to all members of a class certified under Federal Rule of Civil Procedure 23; and (2) whether certifying a class under Rule 23(b)(3) is improper where individualized damages issues predominate, and where plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.


Issue(s): (1) Whether a settlement agreement in a class action may waive all class members’ rights to pursue statutory remedies for the defendant's future violations of the federal antitrust laws, as a divided panel of the Eleventh Circuit held, or whether such a waiver is void because it violates the antitrust laws or public policy, as the Third, Fifth, Sixth, and Eighth Circuits have held, and as this Court stated in dicta in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. and American Express Co. v. Italian Colors Restaurant; and (2) whether a federal antitrust cause of action can be asserted before the occurrence of the acts and injuries from which the cause of action arises, as a divided panel of the Eleventh Circuit held, or whether the cause of action accrues when the plaintiff is injured, as this Court held in Lawlor v. National Screen Service Corp. and Zenith Radio Corp. v. Hazeltine Research, Inc.


Issue(s): (1) Whether a police officer’s warrantless entry into a home is justified under the Fourth Amendment in responding to a 911 call for burglary, regardless of whether the suspected crime is classified as a felony or as a misdemeanor; and (2) whether a police officer is, alternatively, entitled to qualified immunity because it is not clearly established that the warrantless entry into a home in responding to a 911 call for burglary is limited to only a suspected crime classified as a felony.


Issue(s): Whether California’s enforcement of its labor and employment laws against motor carriers by means of a claim of unfair competition under the state’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., is state regulation of competition between motor carriers that is preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c)(1), and therefore unconstitutional.


Issue(s): Whether a state-law action by Employee Retirement Income Security Act (ERISA) plan participants challenging a plan reimbursement provision is completely preempted by ERISA § 502(a)'s exclusive scheme for enforcing and clarifying plan terms.


Issue(s): Whether, when a court of appeals issues a general remand for resentencing, the district court may conduct resentencing de novo.


Issue(s): Whether a state statute banning false political speech is narrowly tailored to meet a compelling state interest when such ban covers both implicit and indirect claims of political support.


Issue(s): (1) What standards a federal habeas court should apply when reviewing a state court's determination that a constitutional error was harmless beyond a reasonable doubt under Chapman v. California; and (2) whether the Sixth Circuit erred by granting habeas relief based on its de novo review of the habeas petitioner’s claim and on its “grave doubts” over whether the alleged constitutional error influenced the jury's verdict.


Issue(s): Whether the judgment below should be vacated and the case remanded for further consideration in light of Burwell v. Hobby Lobby Stores, Inc. and Wheaton Coll. v. Burwell.


Issue(s): Whether the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, precludes those employees from bringing a Section 1983 action to redress age discrimination that violates the Equal Protection Clause.


Issue(s): Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.


Issue(s): (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.


Issue(s): Whether Sixth Circuit precedent which precludes judicial review of the administrative sanction disqualifying petitioners from further participation in the Supplemental Nutrition Assistance Program should be reversed because the express language of 7 U.S.C. § 2023(a)(15) permits de novo judicial review of “the questioned administrative action in issue” and because the Sixth Circuit precedent conflicts with other circuits which have reviewed the issue.


Issue(s): (1) Whether live, two-way video testimony – which is given under oath, allows the jury to assess the witness’s demeanor, and provides the accused a fair opportunity to confront and cross-examine – satisfies the constitutional requirement of face-to-face confrontation or qualifies as a permissible substitute for in-person testimony upon a showing of unavailability or other necessity-based standard; and (2) whether any impermissible use of two-way video testimony is subject to the harmless error standard of Delaware v. Van Arsdall, which evaluates a missing element of confrontation in the context of the witness's testimony and the trial as a whole, or instead is subject to the standard of Coy v. Iowa, which disregards the offending testimony in its entirety and considers only the remaining evidence.


Issue(s): (1) Whether the Fifth Circuit erred in holding that a capital habeas petitioner may not obtain funding under 18 U.S.C. § 3599(f) to investigate and develop a claim of ineffective assistance of trial counsel if the claim has been procedurally defaulted, regardless of whether the petitioner can establish cause for the default under Martinez v. Ryan, at least where the petitioner has not already demonstrated the merits of the claim; and (2) whether, in a capital habeas case where the petitioner has had no opportunity or funding to investigate or develop his procedurally defaulted ineffective-assistance claim, a federal court may deny relief and deny a certificate of appealability based on a premature determination that the claim lacks merit.




Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.


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.


Issue(s): (1) Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison; and (2) whether the Supreme Court has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.



Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of February 20, SCOTUSblog (Feb. 18, 2015, 4:30 PM),