In its Conference of June 25, 2015, the Court is considering petitions seeking review of issues such as whether an appellate court can conduct a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial, whether an officer who fired his service rifle at a vehicle involved in a high-speed chase acted reasonably under the Fourth Amendment, and whether official actions by a Member of Congress to develop, evaluate, and draft legislation that are undertaken prior to the formal introduction of a bill are legislative acts protected by the Speech or Debate Clause.

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.

22o143

Issue(s): (1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents’ use of a pumping operation to take approximately 252 billion gallons of high-quality groundwater; (2) whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi’s borders; and (3) whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents. CVSG: 5/12/2015.

14-1225

Issue(s): Whether common-law fraud claims are preempted by the Americans with Disabilities Act or by the Federal Aviation Administration Authorization Act of 1994 in the absence of a determination that such claims expressly reference air or motor carriers’ rates, routes, or services, or that entertaining such claims would have a significant economic effect on such rates, routes, or services.

14-1164

Issue(s): (1) Whether Article I, Section 2 and the Seventeenth Amendment of the U.S. Constitution require the U.S. Election Assistance Commission to defer to the states’ determination that provision of documentary evidence of citizenship is necessary to enforce the states’ voter qualifications; and (2) whether Article I, Section 2 and the Seventeenth Amendment of the U.S. Constitution permit a dual voter rolls system in which some voters who are qualified to vote for federal office holders are not also qualified to vote for those “in the most numerous branch of the state legislature.”

14-1145

Issue(s): Whether, under Holland v. Florida, a court may impose a per se rule precluding the application of equitable tolling to a 28 U.S.C. § 2255 petition where a petitioner relies to his detriment on binding circuit precedent that would have rendered his claim futile.

14-1143

Issue(s): (1) Whether, when viewing the facts from the perspective of an officer who fired his service rifle at a vehicle involved in a high-speed chase, the officer acted reasonably under the Fourth Amendment when an officer in his situation would believe that the suspect posed a risk of serious harm to other officers or members of the public; and (2) whether the law clearly established that this use of potentially deadly force was unlawful when existing precedent did not address the use of force against a fleeing suspect who had explicitly threatened to shoot police officers.

14-1132

Issue(s): Whether Section 27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state-law claims seeking to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations.

14-1082

Issue(s): (1) Whether legislative fact-finding by an individual Member of Congress is a legislative act protected by the Speech or Debate Clause; (2) whether a Member of Congress' official actions to develop, evaluate, and draft legislation that are undertaken prior to the formal introduction of a bill are legislative acts protected by the Speech or Debate Clause; and (3) whether a Member of Congress can waive the protections of the Speech or Debate Clause only by explicitly and unequivocally renouncing them.

14-921

Issue(s): Whether the minimum required culpability state for denying a bankruptcy debtor a discharge of a tax debt based on the debtor's participation in a disallowed tax shelter, and spending decisions in light of a known or potential tax debt is: (1) negligence (i.e., the debtor should have known better than to participate in the tax shelter or spend money on something other than a present or potential future tax bill), per the analysis of several circuits including the Tenth Circuit in In re Vaughn; (2) specific intent (i.e., the debtor must specifically intend for his spending to defeat the IRS's ability to collect a tax debt), per the Ninth Circuit's analysis in Hawkins v. Franchise Tax Board; (3) the mental state of knowingly (i.e., the debtor knows it is practically certain that his spending will put money beyond the reach of the IRS's collection efforts), in conformity with this Court's decisions equating willfulness with knowledge; or (4) some other mental state.

14-656

Issue(s): (1) Whether the plaintiff bears the burden of proving loss causation under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1109, or whether it can shift the burden on that element to the defendant by carrying its burden on the analytically distinct elements of breach of fiduciary duty and loss to the plan; and (2) whether an ERISA fiduciary with a duty of prudence can be held liable for money damages under Section 1109 even though its ultimate investment decision was objectively prudent. CVSG: 5/26/2015.

14-510

Issue(s): Whether the D.C. Circuit misapplied this Court's decision in Holland v. Florida when it ruled – in direct conflict with a holding of the Federal Circuit on materially similar facts – that the Tribe did not face an “extraordinary circumstance” warranting equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act.

14-410

Issue(s): Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way. CVSG: 5/26/2015.

13-1467

Issue(s): Whether the Federal Employees Health Benefits Act (FEHBA), which expressly “preempt[s] any State or local law” that would prevent enforcement of “[t]he terms of any contract” under FEHBA that “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” preempts state laws precluding carriers that administer FEHBA plans from seeking reimbursement or subrogation pursuant to the terms of FEHBA contracts. CVSG: 05/22/2015.

13-1379

Issue(s): Whether, under Buckman Co. v. Plaintiffs’ Legal Committee, the Federal Food, Drug, and Cosmetic Act impliedly preempts a private state-law claim for unfair competition premised on a party’s purported failure to obtain Food and Drug Administration approval, where the Food and Drug Administration itself has not imposed any such requirement. CVSG: 05/26/2015.

13-1305

Issue(s): Whether the Federal Employees Health Benefits Act (FEHBA), which governs the federal government’s provision of health benefits to millions of federal employees and their dependents, preempts state laws precluding carriers that administer FEHBA plans from seeking subrogation as required by their contracts with the Office of Personnel Management. CVSG: 05/22/2015.

 

Relists

14-181

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.

14-395

Issue(s): Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied "clearly established" law when they held that third-party religious discussions with jurors did not concern "the matter[s] pending before the jury."

14-848

Issue(s): Whether an appellate court violates the core principles of Strickland v. Washington when it conducts a post-hoc assessment of trial counsel’s performance based on scientific advances not available at the time of trial.

14-915
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case.

Issue(s): (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

14-973

Issue(s): Whether or under what circumstances police officers conduct a search within the meaning of the Fourth Amendment when they trespass in common areas of locked apartment buildings to look for evidence of criminal activity.

14-981

Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

14-997

Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment requires Mississippi to exempt physicians at the State’s only abortion clinic from complying with a medically legitimate health and safety regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether Mississippi House Bill 1390, which requires that abortion physicians have admitting privileges at a local hospital to handle complications that require emergency hospitalization, imposes an undue burden under Planned Parenthood v. Casey regardless of the geographical availability of abortion services in adjoining states in light of the equal protection principle articulated in Missouri ex rel. Gaines v. Canada.

14-1095

Issue(s): (1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

14-1096

Issue(s): Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of June 25, SCOTUSblog (Jun. 26, 2015, 3:00 PM), https://www.scotusblog.com/2015/06/petitions-to-watch-conference-of-june-25/