In its Conference of November 24, 2015, the Court will consider petitions seeking review of issues such as whether restrictions on occupational speech are subject to First Amendment scrutiny, whether the federal Bankruptcy Code preempts Puerto Rico statutory law, and whether one city’s ban on “assault weapons” violates the Second 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 “fraud or concealment” exception to the statute of repose found in 29 U.S.C. § 1113 for alleged breaches of an Employee Retirement Income Security Act fiduciary’s duty applies only when a defendant takes affirmative steps to hide the alleged breach – as the First, Third, Seventh, Eighth, Ninth, and D.C. Circuits have held – or whether the exception can be invoked any time the underlying claim is premised on a fraud theory – as the Second and Tenth Circuits have held.


Issue(s): Whether a welfare plan governed by the Employee Retirement Income Security Act must include “clear and express” vesting language as a prerequisite to a contractual-vesting claim as a matter of law.


Issue(s): Whether Chapter 9 of the federal Bankruptcy Code, which does not apply to Puerto Rico, nonetheless preempts a Puerto Rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts.


Issue(s): (1) Whether the rule in USPS Board of Governors v. Aikens applies to the evaluation of a discrimination claim at summary judgment; and (2) whether a plaintiff claiming discrimination is required to prove, as an element of a prima facie case, that he or she was treated less favorably than a “nearly identical” “similarly situated” individual who is not a member of the protected class, a Fifth Circuit requirement which courts have characterized as “stringent,” “strict,” and “demanding.”


Issue(s): (1) Under what circumstances are plaintiffs who obtain preliminary relief in cases that do not proceed to final judgment prevailing parties eligible for an award of attorneys’ fees? and (2) whether the simplicity of a legal claim is a factor relevant only to the amount of fees awarded as the Third and Tenth Circuits have held and as this Court and others have suggested, or whether “simple” legal claims, otherwise made eligible for fees by Congress, involve insufficient “merits” analysis to trigger prevailing party status, as the Fifth Circuit held.


Issue(s): Whether a defendant asserting a structural error in connection with the denial of his Sixth Amendment right to a public trial – where the defendant and his counsel were concededly unaware that the courtroom had been closed during the entirety of jury selection – must show that he was prejudiced by the courtroom closure on a collateral challenge to his conviction, or, whether prejudice is presumed because the harm from the structural error is “necessarily unquantifiable and indeterminate.”


Issue(s): Whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review.


Issue(s): Whether a dismissal of a Title VII case, based on the Equal Employment Opportunity Commission’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of a attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k).




Issue(s): (1) Whether the Sixth Circuit disregarded the highly deferential standards Congress imposed in 28 U.S.C. §§2254(d)(1), (d)(2) and (e)(1), and the deference owed to trial court’s factual finding of juror bias required by Wainwright v. Witt, when it granted habeas relief on Wheeler’s Witherspoon/Witt claim; and (2) whether a violation of Witherspoon/Witt should be subject to harmless error analysis.


Issue(s): (1) Whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, results in a false claim that violates Section 3729(a)(1)(A) of the False Claims Act under the “implied certification” theory of liability; (2) whether “implied certification” is a valid theory of liability under Section 3729(a)(1)(A) of the False Claims Act; and (3) whether, given Federal Rule of Civil Procedure 9(b)’s requirement that all fraud claims be pleaded with particularity, a “false record or statement” claim under Section 3729(a)(1)(B) of the False Claims Act obliges a plaintiff to plead actual reliance by the government on the false record or statement in question.


Issue(s): (1) Whether the Louisiana courts erred in failing to find that the State’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that petitioner’s sole attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington.


Issue(s): (1) Whether a stun gun is an “arm” within the meaning of the Second Amendment, and (2) whether Massachusetts’s blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.


Issue(s): (1) Whether the Sixth Circuit’s ruling – that the lack of Supreme Court case law holding that references to a victim’s pregnancy when the pregnancy is not an issue at trial violates due process means no “clearly established” law exists for purposes of 28 U.S.C. §2254(d) – conflicts with this Court’s rulings holding that “clearly established” law does not require a case with an identical fact pattern but instead includes legal principles and standards flowing from precedent and general standards designed to apply to a myriad of factual situations; and (2) whether this Court’s standard that a state evidentiary ruling can be so egregious as to deny a defendant fundamental fairness and thus violate the federal due process clause is broad enough to constitute “clearly established” law that applies when the prosecution introduces irrelevant evidence of a victim’s pregnancy; and, if so, whether the evidence regarding the victim’s pregnancy and the prosecutor’s ensuing argument are “contrary to” or an “unreasonable application of” this “clearly established” law.


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.


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.


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.


Issue(s): (1) Whether the Ninth Circuit’s judgment in this case should be granted, vacated, and remanded in light of Horne v. Department of Agriculture, and (2) whether the California Unclaimed Property Law violates the Due Process Clause of the Fourteenth Amendment because it deprives owners of their property without affording constitutionally adequate notice.


Issue(s): Whether the residual clause of the United States Sentencing Guidelines, Section 4B1.2, should be declared void for vagueness.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of November 24, SCOTUSblog (Nov. 21, 2015, 9:44 AM),