In its Conference of October 30, 2015, the Court will consider petitions seeking review of issues such as whether the Affordable Care Act’s contraceptive-coverage mandate violates the Religious Freedom Restoration Act, what type of analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, and whether Louisiana’s per se ban on the introduction of eyewitness identification expert testimony violates the Due Process, Confrontation, and Compulsory Process Clauses of the U.S. Constitution.

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.

15-324

Issue(s): (1) Whether a later-overturned lower court decision accepting an untimely state habeas petition can equitably toll the federal habeas deadline when the prisoner was on notice that her state petition was filed late and she failed to file a protective federal petition per Pace v. DiGuglielmo; and (2) whether the Ninth Circuit's decision warrants summary reversal because, although it purported to toll Rudin's federal deadline because she was misled by the lower court, the Ninth Circuit without explanation granted an extra 254 days of additional equitable tolling for the period after the Nevada Supreme Court reversed the misleading decision.

15-161

Issue(s): (1) Whether the Sixth Circuit erred when it granted habeas relief based on the theory that respondent was denied the right to confront the two witnesses when the state courts did not allow him to introduce their post-testimony written recantations to impeach their former testimony; (2) whether the Sixth Circuit erred in holding that a written statement recanting former testimony is not “extrinsic” to that testimony and that such statements may be admitted by merely “recit[ing] [them] to the jury” without an authenticating witness; and (3) whether the Sixth Circuit erred in concluding that the state court’s determination that any error was harmless beyond a reasonable doubt was objectively unreasonable, where there was other substantial evidence of respondent’s guilt and the evidence was interlocking and not dependent on the credibility of any single witness.

15-145

Issue(s): Whether the “actual fraud” bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor.

15-118

Issue(s): (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. CVSG: 03/01/2016.

15-109

Issue(s): Whether a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the Federal Tort Claims Act’s exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.

15-105
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case.

Issue(s): (1) Whether the availability of a regulatory method for nonprofit religious employers to comply with the Department of Health and Human Services’ contraceptive mandate eliminates either the substantial burden on religious exercise or the violation of RFRA that this Court recognized in Burwell v. Hobby Lobby Stores, Inc.; and (2) whether HHS satisfies RFRA’s demanding test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill HHS’s regulatory objective—namely, the provision of no-cost contraceptives to the objector’s employees.

15-88
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 a verifiably false factual statement about a matter of obvious importance to a company can nevertheless constitute inactionable “puffery” under the federal securities laws.

15-50

Issue(s): Whether Louisiana's per se ban on the introduction of eyewitness identification expert testimony violates the Due Process, Confrontation, and Compulsory Process Clauses of the U.S. Constitution.

15-10

Issue(s): Whether a capital defendant's decision not to introduce an inadequate mitigation defense at sentencing automatically defeats a claim that counsel's failure to prepare that defense deprived the defendant of his right to effective assistance of counsel.

14-1535

Issue(s): (1) Whether prosecutors are permitted to withhold materials covered by Brady v. Maryland when it is possible that the defendant may have been able to discover the materials through another source; (2) whether a court of appeals may conclude that withheld evidence was not material, consistent with Brady and its progeny, without viewing the evidence cumulatively and in light of the entire record.

14-1524

Issue(s): Whether the threshold requirement that two businesses be “similarly situated” for Commerce Clause purposes depends on whether they directly compete in the relevant market (which is how three circuits and three state supreme courts analyze the issue), or whether it instead requires a court to attempt to assess whether the businesses are regulated differently, how the businesses operate, and how the state justifies the law (as four circuits and one state supreme court have held).

14-1505
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case.

Issue(s): Whether the Religious Freedom Restoration Act allows the government to force objecting religious nonprofit organizations to violate their beliefs by offering health plans with “seamless” access to coverage for contraceptives, abortifacients, and sterilization.

14-1499

Issue(s): Whether the threshold requirement that two businesses be “similarly situated” for Commerce Clause purposes depends on whether they directly compete in the relevant market (which is how three circuits and three state supreme courts analyze the issue), or whether it instead encompasses a wide-ranging inquiry into the justifications for the law and operational differences (as four circuits and one state supreme court have held).

14-1306
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 a court of appeals, having found an appeal barred by an appeal waiver in a plea agreement may vacate the judgment and remand to allow imposition of a higher sentence in the absence of a cross-appeal by the government.

 

Relists

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.

14-1273

Issue(s): (1) Whether exemption 4 of the Freedom of Information Act permits nondisclosure due to speculative future competition and likelihood that disclosure would substantially harm the competitive position of a grant applicant; and (2) whether exemption 5 of the Freedom of Information Act shields documents and discussions about an agency’s public justification for prior decisions.

14-10154

Issue(s): Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).

15-133

Issue(s): (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected “arms” that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.

15-5238

Issue(s): (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of October 30, SCOTUSblog (Oct. 22, 2015, 11:00 PM), https://www.scotusblog.com/2015/10/petitions-to-watch-conference-of-october-30/