At its Conference on April 24, 2015, the Court will consider petitions seeking review of issues such as retaliation for speech and association protected by the First Amendment, the use of a firearm and handcuffs during an investigative stop, and the filing period for a constructive discharge claim under federal employment discrimination law.

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 use of a firearm and handcuffs during an investigative stop of an individual not suspected of any crime exceeds the bounds of a permissible Terry v. Ohio stop where their use is justified by officers' suspicions about a different individual.


Issue(s): (1) Whether the Third Circuit erred in holding that 42 U.S.C. § 1983 authorizes the imposition of supervisory liability on state officials for a subordinate’s alleged constitutional violation; and (2) whether the Third Circuit erred in holding that there is a clearly established right under the Eighth Amendment to the “proper implementation of adequate suicide prevention protocols.”


Issue(s): (1) Whether, in a 42 U.S.C. § 1983 action brought by an individual alleging that a prior criminal conviction was obtained in violation of this Court's decision in Brady v. Maryland – requiring the prosecution to turn over potentially exculpatory evidence – the statute of limitations runs from the time the case is resolved via nolle prosequi or otherwise “in such manner that [proceedings] cannot be revived” – as the Fourth Circuit below concluded – or runs from the moment the plaintiff may bring the action under this Court’s decision in Heck v. Humphrey – as the Tenth Circuit has concluded and as the Sixth, Ninth, and Eleventh Circuits have suggested; and (2) whether the Fourth Circuit erred when it concluded, inconsistent with its own decisions and those of this Court, that individual police officers had an independent Brady duty to bring forward exculpatory evidence in 1988 and that this was clearly established so as to support a cause of action against the individual officers under 42 U.S.C. § 1983 and negate a defense of qualified immunity.


Issue(s): (1) Whether government defendants are subject to the same heavy burden of persuasion as all other defendants when they contend that a claim for injunctive relief is moot based on voluntary cessation – which is the rule the First, Eighth, and District of Columbia Circuits utilize – or whether government defendants are entitled to a presumption of good faith that effectively shifts the burden of persuasion on the mootness question to plaintiffs – as eight other circuits have held, including the Ninth Circuit in this case; and (2) whether a request for injunctive relief that would require a defendant to permit a plaintiff to engage in expressive activity that was previously barred in violation of the First Amendment is mooted by the closure of the forum, as the Ninth Circuit concluded, or is a form of available relief and thus not moot, as the Seventh Circuit has held.


Issue(s): (1) Whether considerations of “equity, comity, and federalism” insufficient to support abstention can override the holding in Mitchum v. Foster that 42 U.S.C. § 1983 is an “expressly authorized” statutory exception to the Anti-Injunction Act; and (2) whether, as this Court left unresolved in Hartman v. Moore, officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association, particularly where non-retaliatory grounds are insufficient to support the investigation.


Issue(s): (1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.


Issue(s): Whether the Federal Energy Regulatory Commission's jurisdiction over interstate markets for wholesale sales of electric energy under sections 201, 205 and 206 of the Federal Power Act, 16 U.S.C. §§ 824(b)(1), 824d and 824e, provides the Commission with authority to regulate participation in those markets by demand response resources.


Issue(s): Whether the Federal Energy Regulatory Commission reasonably concluded that it has authority under the Federal Power Act, 16 U.S.C. § 791a et seq., to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. (J. Alito recused.)


Issue(s): Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia's invalidated effort to do the same.


Issue(s): Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).



Issue(s): (1) Whether the Ninth Circuit erred in holding, contrary to this Court's decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona's Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno's requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.


Issue(s): Whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation, as three other circuits have held.


Issue(s): Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. CVSG: 3/13/2015.




Posted in Cases in the Pipeline, Featured

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of April 24, SCOTUSblog (Apr. 24, 2015, 9:28 AM),