In its Conference of January 15, 2016, the Court will consider petitions considering issues such as Texas’s challenge to the Obama administration’s policy of deferring deportation action for certain undocumented immigrants, whether the Full Faith and Credit Clause permits a court to deny recognition to an adoption judgment previously issued by a court from a sister state, and whether a provision of the Affordable Care Act that requires individuals to “maintain insurance coverage or make a provision to the Internal Revenue Service” is a “Bill[] for raising Revenue” to which the Origination Clause applies.

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): (1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.


Issue(s): Whether, in all cases, the imposition of a sentence of death violates the Eighth Amendment’s prohibition against cruel and unusual punishments.


Issue(s): Whether the Full Faith and Credit Clause permits a court to deny recognition to an adoption judgment previously issued by a court from a sister state, based on the forum court’s de novo determination that the issuing court erred in applying its own state’s adoption law.


Issue(s): (1) Whether the D.C. Circuit erred when it held, in conflict with the Second Circuit, that analyses of a proposed settlement’s expected cost and value, directed by an attorney and under the framework and using the inputs provided by the attorney, were fact rather than opinion work product if they were prepared in part for a business purpose; and (2) whether the D.C. Circuit erred when it held, in conflict with the Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits, that to make a showing of “substantial need” sufficient to override work product protection for fact work product, a party need not show that the requested material has any heightened relevance to the case.


Issue(s): (1) Whether the Affordable Care Act’s tax on going without health insurance is a “Bill[] for raising Revenue” to which the Origination Clause applies; and (2) whether the Senate's gut-and-replace procedure was a constitutionally valid “amend [ment]” pursuant to the Origination Clause.


Issue(s): (1) Whether a judgment that conclusively determines liability, sets forth the amount of a money judgment, and orders the sale of property is final under 28 U.S.C. § 1291; and (2) whether, alternatively, such a judgment is final and appealable under the effective finality doctrine first announced in Forgay v. Conrad.


Issue(s): Whether the Handicapped Children’s Protection Act of 1986 commands exhaustion in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act, that seeks damages – a remedy that is not available under the Individuals with Disabilities Education Act. CVSG: 05/20/2016.


Issue(s): (1) Whether the First Amendment protects police officers who report misconduct in their ranks to a law enforcement agency for investigation; and (2) whether petitioners are entitled to qualified immunity.


Issue(s): Whether the Second Circuit erred in impeding, and discriminating against, foreign investment by treating foreign income taxes not as taxes, but as expenses, in determining entitlement to the foreign tax credit.


Issue(s): Whether a State Department report that does no more in substance than convey double-hearsay statements made by unnamed officials of the foreign government alleged to have persecuted an asylum applicant constitutes “substantial evidence” sufficient to support an agency finding that the applicant should be denied asylum.


Issue(s): Whether the Massachusetts Supreme Judicial Court erred when it held, in direct conflict with the Seventh Circuit, that FDA's rejection of warning language proposed in a Citizen Petition is not “clear evidence” sufficient to preempt state tort claims that the manufacturer was obligated to add the FDA-rejected language to its drug's labeling.


Issue(s): Whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.


Issue(s): Whether the First Circuit erroneously held – in conflict with the Fourth, Sixth, Eighth, and Ninth Circuits, but consistent with the Seventh and Eleventh Circuits – that a mandatory minimum sentence imposed in violation of Alleyne, based on a fact found by a judge by a preponderance of the evidence at sentencing, can be deemed not to have affected the defendant's substantial rights, if an appellate court concludes that the fact was supported by “overwhelming evidence” offered only at sentencing, but never presented to a jury or admitted by the defendant in connection with a guilty plea.




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): Whether the Fourth Circuit erred in affirming the denial of relief on the inmate petitioner's complaint alleging that the prison discriminated against him in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act by refusing to permit him to organize a Jewish Bible study group.


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, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.


Issue(s): (1) Whether a request to temporarily cease questioning is a clear and unequivocal assertion of the right to remain silent under the Fifth Amendment; and (2) whether the use of the equivocal phrase “I guess” along with an explicitly expressed desire to continue talking to police is a clear and unequivocal assertion of the right to remain silent under the Fifth Amendment.


Issue(s): What constitutes the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act.


Issue(s): Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act's overtime-pay requirements.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by Intellectual Ventures Management, LLC., in support of the petitioners in this case.

Issue(s): (1) Whether the court of appeals erred in holding that, in inter partes review (IPR) proceedings, the Patent Trial and Appeal Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the court of appeals erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the Board’s decision whether to institute an IPR proceeding is judicially unreviewable.


Issue(s): Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.


Issue(s): Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge's presence, the judge may recall the jurors for further service in the same case.


Issue(s): Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.


Issue(s): Whether the Idaho Supreme Court correctly concluded that Hughes v. Rowe and Christiansburg Garment Co. v. EEOC do not bind state courts because this Court “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.”


Issue(s): Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of January 15, SCOTUSblog (Jan. 8, 2016, 11:00 PM),