In its Conference of November 6, 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, whether Texas’s restrictions on reproductive-health clinics constitute an “undue burden” on women seeking abortions, and whether Article III’s case or controversy requirement can be satisfied when the suit seeks a judgment of non-infringement of a disclaimed patent.

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.

15-307

Issue(s): (1) Whether Article III’s case or controversy requirement can be satisfied when the suit seeks a judgment of non-infringement of a disclaimed patent; and (2) whether Congress can create Article III jurisdiction by imposing statutory consequences that turn on obtaining a judgment of non-infringement of a disclaimed patent.

15-281

Issue(s): Whether an action seeking a declaration that a patent would not be infringed presents a justiciable case or controversy under Article III of the Constitution where the patent at issue was previously disclaimed and thus cannot be enforced.

15-274

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

15-163

Issue(s): Whether the amount of a remedy based on the improper delay in the payment of a benefit should be based on: (1) only the amount needed to redress the loss that the beneficiary sustained as a result of the wrongful delay (the rule in the Sixth Circuit); (2) either the amount needed to redress the loss that the beneficiary sustained as a result of the wrongful delay or the amount needed to disgorge any gain improperly realized by the plan as a result of that wrongful delay (the rule in the Second, Third, Seventh, Eighth and District of Columbia Circuits); (3) the most analogous state prejudgment interest rate (the rule in the Fifth, Tenth and Eleventh Circuits); or (4) the § 1961 post-judgment interest rate (the rule in the Ninth Circuit).

15-156

Issue(s): Whether the Federal Aviation Act preempts all state and local general land-use regulation aimed at addressing off-site airport noise, as the Vermont Supreme Court and other state high courts have held, or whether it preempts only those state and local general land-use regulations that conflict with federal law or intrude into a preempted field in their scope and effect, as the Second Circuit and several other federal courts of appeals and state high courts have held.

15-152

Issue(s): (1) Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and (2) whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

15-146

Issue(s): (1) Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 67 days is permitted by the Fourth Amendment; and (2) whether the good-faith exception to the exclusionary rule applies where the search was based on a court order sought by a prosecutor rather than a warrant sought by police, particularly when the governing statute provided the prosecutor with the option to pursue a warrant but the prosecutor ignored it.

15-8

Issue(s): Whether a generic choice-of-law provision in an otherwise broad arbitration agreement, one that does not reference a particular state, should be read to reflect intent by the parties to avoid preemption under the Federal Arbitration Act and instead to apply a rule of that state that limits or bars arbitration of an otherwise covered dispute despite the strong preference for enforcement of arbitration provisions as expressed in the Federal Arbitration Act.

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.


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.

14-1505
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.

15-35
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 availability of a regulatory option 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.

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.

15-109

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.

15-118

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.

15-145

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.

15-161

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.

15-5238

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 November 6, SCOTUSblog (Nov. 5, 2015, 9:00 AM), https://www.scotusblog.com/2015/11/petitions-to-watch-conference-of-november-6/