Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address, among other things, the constitutionality of New York City’s ban on the transportation of handguns outside of the city; the availability of punitive damages to a Jones Act seaman in a certain personal-injury action; the applicability of the particularity requirement to the probable-cause […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutionality of New York City’s ban on the transportation of handguns outside of the city; the availability of punitive damages to a Jones Act seaman in a certain personal-injury action; the applicability of the particularity requirement to the probable-cause findings in a warrant; and the classification of a prior salary as a permissible differential when paying men and women different wages for the same work under the Equal Pay Act.

The petitions of the week are:

18-266

Issue: Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.

18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

18-280

Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel.

18-285

Issues: (1) Whether severance is the default remedy when part of a warrant is valid, or whether the Fourth Amendment requires that the valid sections make up “the greater part of the warrant”; (2) whether the particularity clause—which requires a warrant to describe “the place to be search[ed]” and “the things to be seized” with sufficient particularity— also requires a warrant to state its probable-cause findings with particularity; and (3) whether the exclusionary rule applies when the issuing judge signs off on the officer’s legal mistake in filling out a warrant form.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address, among other things, the constitutional implications of trial counsel’s failure to make an argument based on persuasive, as opposed to controlling, authority; the extent to which the National Bank Act pre-empts state laws; and the limitations the due process clause imposes when prosecuting […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutional implications of trial counsel’s failure to make an argument based on persuasive, as opposed to controlling, authority; the extent to which the National Bank Act pre-empts state laws; and the limitations the due process clause imposes when prosecuting a juvenile under a statute that provides only punishments that cannot constitutionally be applied to juveniles.

The petitions of the week are:

18-188

Issues: (1) Whether trial counsel’s failure to make an argument that courts of appeals outside the circuit have accepted (and the circuit has not addressed) may amount to constitutionally deficient assistance of counsel or, instead, whether only directly controlling precedent is relevant; and (2) whether, when a defendant and the government have agreed that the court will address at sentencing a factual question for purposes of imposing a statutory mandatory-minimum sentence, they have also implicitly agreed that the defendant’s “offense of conviction” has “established” the factual finding for purposes of the Sentencing Guidelines.

18-192

Issue: Whether the due process clause forbids the government from prosecuting an individual who was a juvenile at the time of the crime under a statute that provides no punishment that can constitutionally be applied to that individual.

18-212

Issues: (1) Whether the National Bank Act pre-empts state laws regulating national-bank loan terms, such as California’s law requiring payment of interest on mortgage-loan escrow accounts; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in disregarding regulations from the Office of the Comptroller of the Currency, the primary regulator of national banks, concerning the applicability of state real-estate lending laws to national banks.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address, among other things, Article III standing requirements with regard to individuals whose personal information is held in a database breached by hackers, the effect of the Federal Tort Claims Act’s discretionary-function exception on the act’s law-enforcement proviso, and whether a trial court may […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, Article III standing requirements with regard to individuals whose personal information is held in a database breached by hackers, the effect of the Federal Tort Claims Act’s discretionary-function exception on the act’s law-enforcement proviso, and whether a trial court may deny a criminal defendant’s motion to represent himself based on the defendant’s improper motive or unethical conduct.

The petitions of the week are:

18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

18-225

Issue: Whether individuals whose personal information is held in a database breached by hackers have Article III standing simply by virtue of the breach even without concrete injury, as the U.S. Courts of Appeals for the 3rd, 6th, 7th, 9th and District of Columbia Circuits have held, or whether concrete injury as a result of the breach is required for Article III standing, as the U.S. Courts of Appeals for the 1st, 2nd, 4th and 8th Circuits have held.

18-234

Issue: Whether, and to what extent, the discretionary-function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), restricts the FTCA’s law enforcement proviso, which waives the United States’ sovereign immunity for “[a]ny claim” arising out of an enumerated list of intentional common-law torts committed by federal law-enforcement officers.

18-238

Issue: Whether the South Carolina Supreme Court erred when it held, in conflict with many federal courts of appeals, that a trial court may not deny a criminal defendant’s motion to represent himself based on the “defendant’s improper motive or unethical conduct.”

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read to import state substantive law without importing state rules impairing arbitration, the effect of the Prison Litigation Reform Act’s tailoring requirement for prospective relief, and the establishment […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read to import state substantive law without importing state rules impairing arbitration, the effect of the Prison Litigation Reform Act’s tailoring requirement for prospective relief, and the establishment of the element of loss causation in a securities-fraud case.

The petitions of the week are:

18-162
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issue: Whether the Prison Litigation Reform Act’s tailoring requirement – which provides that before a district court may order prospective relief with respect to prison conditions, it must find “that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right,” 18 U.S.C. § 3626(a)(1)(A) – prohibits a district court from ordering a prison to maintain a maximum heat index to remedy a constitutional violation caused by heat.

18-164

Issue: Whether a private securities-fraud plaintiff may establish the critical element of loss causation based on a decline in the market price of a security when the event or disclosure that triggered the decline did not reveal the fraud on which the plaintiff’s claim is based.

18-174

Issues: (1) Whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read, consistent with the Federal Arbitration Act and the Supreme Court’s decisions, to import state substantive law without importing state rules impairing arbitration, as 10 federal courts of appeals and nine state courts of appeals have held, or whether a general choice-of-law clause should be read to incorporate both state substantive law and state arbitration principles, including those barring or otherwise evincing hostility to arbitration, as four state courts of appeals and one federal court of appeals have held; and (2) whether a litigant may avoid the enforcement of a contractual clause delegating questions of arbitrability to the arbitrator merely by stating that the litigant’s objection to arbitration—which must ordinarily be resolved by the arbitrator—apply equally to the delegation clause itself.

18-175

Issues: (1) Whether a general choice-of-law clause in a contract that contains an arbitration agreement should be read, consistent with the Federal Arbitration Act and the Supreme Court’s decisions, to import state substantive law without importing state rules impairing arbitration, as 10 federal courts of appeals and nine state courts of appeals have held, or whether a general choice-of-law clause should be read to incorporate both state substantive law and state arbitration principles, including those barring or otherwise evincing hostility to arbitration, as four state courts of appeals and one federal court of appeals have held; and (2) whether a litigant may avoid the enforcement of a contractual clause delegating questions of arbitrability to the arbitrator merely by stating that the litigant’s objection to arbitration—which must ordinarily be resolved by the arbitrator—apply equally to the delegation clause itself.

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Petitions of the week

Petitions of the weekThis week we highlight petitions pending before the Supreme Court that address the standard for determining the adequacy of the “written description of the invention” in a patent, the effect of the Hobbs Act on whether courts may engage in a traditional Chevron analysis, and the interplay between Federal Power Act and the powers of the Federal […]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address the standard for determining the adequacy of the “written description of the invention” in a patent, the effect of the Hobbs Act on whether courts may engage in a traditional Chevron analysis, and the interplay between Federal Power Act and the powers of the Federal Energy Regulatory Commission.

The petitions of the week are:

17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

18-127

Issue: Whether the standard for determining the adequacy of the “written description of the invention” in a patent must be “in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains . . . to make and use the same,” as stated within the Patent Act, 35 U.S.C. § 112(a), or whether court-created standards should control instead.

18-153

Issues: (1) Whether, given the Supreme Court’s holdings that the Federal Power Act pre-empts inconsistent state ratemaking and requires state agencies to treat cost allocations made by the Federal Energy Regulatory Commission as reasonable, FERC may deny a refund authorized by FPA Section 206(b) based on the threat of a state regulatory commission to violate the supremacy clause by denying recovery of the surcharge needed to make the refund; and (2) whether – when FERC grants a refund for an unjust and unreasonable holding-company cost allocation, pursuant to its policy to grant refunds for unjust and unreasonable rates, and numerous holding-company refund decisions support the policy – a U.S. court of appeals may, without scrutiny, accept FERC’s subsequent reversal of its refund decision based on its assertion that its previously cited policy never existed, and its reversal of key prior findings without explanation.

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Petitions of the week

Petitions of the weekThis week we highlight cert petitions pending before the Supreme Court that address the scope of Title VII’s prohibition on discrimination “because of … sex” with regard to transgender individuals, the attachment of the Sixth Amendment right to counsel in the context of plea negotiations, and the constitutional consequences of waiving a state-law right to […]

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Petitions of the week

This week we highlight cert petitions pending before the Supreme Court that address the scope of Title VII’s prohibition on discrimination “because of … sex” with regard to transgender individuals, the attachment of the Sixth Amendment right to counsel in the context of plea negotiations, and the constitutional consequences of waiving a state-law right to have a jury make an advisory sentencing recommendation in a capital case.

The petitions of the week are:

18-106

Issues: (1) Whether the Sixth Amendment right to counsel attaches when the prosecutor conducts plea negotiations before the filing of a formal charge; and (2) whether the Sixth Amendment right to counsel attaches when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court when the defendant has already been charged with the same offense in state court.

18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

18-113

Issue: Whether waiving a state-law right to have a jury make an advisory sentencing recommendation constitutes a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver.

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Petitions of the week

Petitions of the weekThis week we highlight cert petitions pending before the Supreme Court that address retroactive “public nuisance” liability and the due process clause, the application of a state anti-SLAPP provision in federal court, and the powers granted to states by the 21st Amendment. The petitions of the week are: ConAgra Grocery Products Co. v. California 18-84 Issues: (1) […]

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Petitions of the week

This week we highlight cert petitions pending before the Supreme Court that address retroactive “public nuisance” liability and the due process clause, the application of a state anti-SLAPP provision in federal court, and the powers granted to states by the 21st Amendment.

The petitions of the week are:

18-84

Issues: (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment.

18-86

Issues: (1) Whether, in conflict with decisions of the Supreme Court and the U.S. Court of Appeals for the 3rd Circuit, the First Amendment permits California to impose tort liability for truthfully promoting a lawful product that it finds to be hazardous in some uses; and (2) whether the due process clause allows a state to impose retroactive and grossly disproportionate public nuisance liability to inspect and abate millions of residences based on decades-old promotions without evidence that consumers relied on those promotions or that petitioner’s lead paint is in any residence.

18-89

Issues: (1) Whether a state anti-SLAPP provision requiring an award of attorney’s fees and costs to a prevailing defendant applies in federal court as the U.S. Courts of Appeals for the 1st, 2nd, 5th and 9th Circuits have concluded, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits; and (2) whether a state anti-SLAPP provision requiring expedited disposition of dismissal motions applies in federal court as the U.S. Courts of Appeals for the 1st and 5th Circuits have held, in conflict with the U.S. Courts of Appeals for the 10th and District of Columbia Circuits.

18-96

Issue: Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.

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Petitions of the week

Petitions of the weekThis week we highlight three cert petitions pending before the Supreme Court that address the use of a 2017 Supreme Court decision, Moore v. Texas, to find that a state court in 2008 unreasonably applied Atkins v. Virginia; criminal convictions requiring removal under the Immigration and Nationality Act; and crimes that qualify as a crime of violence under […]

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Petitions of the week

This week we highlight three cert petitions pending before the Supreme Court that address the use of a 2017 Supreme Court decision, Moore v. Texas, to find that a state court in 2008 unreasonably applied Atkins v. Virginia; criminal convictions requiring removal under the Immigration and Nationality Act; and crimes that qualify as a crime of violence under 18 U.S.C. § 16(a).

The petitions of the week are:

18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Hill was not intellectually disabled.

18-64

Issue: Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

18-78

Issue: Whether, when a state statute criminalizes only the causation or threat of bodily harm without a distinct element requiring the use or threatened use of physical force, that offense qualifies as a crime of violence within the meaning of 18 U.S.C. § 16(a) as the U.S. Courts of Appeal for the 7th, 8th and 9th Circuits have held, or whether 18 U.S.C. § 16(a) applies only if the statute also requires the use, attempted use or threatened use of physical force as the U.S. Courts of Appeals for the 1st, 2nd and 5th Circuits have held.

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Petitions of the week

Petitions of the weekThis week, the Supreme Court has been presented with petitions involving issues such as whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross; and whether public school teachers and coaches retain any […]

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Petitions of the week

This week, the Supreme Court has been presented with petitions involving issues such as whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross; and whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

The petitions of the week are:

17-1703

Issue: Whether, under the “safe alternatives policy” of Section 612 of the Clean Air Act, the Environmental Protection Agency lacks authority to prohibit the use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative, just because a company has already begun using the less-safe substitute.

18-2

Issue: Whether the Environmental Protection Agency has authority under Section 612 of the Clean Air Act to prohibit the use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before the EPA placed them on the prohibited list.

18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. KurtzmanVan Orden v. PerryTown of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

18-3

Issues: (1) Whether Section 302(e) of the Labor Management Relations Act, 29 U.S.C. § 186(e), provides for a private right of action; and (2) whether a labor organization violates its duty of fair representation by refusing to honor, at the end of the next applicable irrevocability period, employees’ check-off authorization revocations that are not sent during an annual, 15-day window period and by certified mail.

18-12

Issue: Whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

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Petitions of the week: The new “Petition of the day”

Petitions of the week: The new “Petition of the day”As of this week, the “Petitions of the week” post will replace the “Petition of the day” post. The now-weekly post functions the same way as its daily predecessor: It is a vehicle for identifying recently filed petitions that raise issues that have a reasonable chance of being granted in an appropriate case. As a […]

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Petitions of the week: The new “Petition of the day”

As of this week, the “Petitions of the week” post will replace the “Petition of the day” post. The now-weekly post functions the same way as its daily predecessor: It is a vehicle for identifying recently filed petitions that raise issues that have a reasonable chance of being granted in an appropriate case. As a reminder, we generally do not evaluate whether a petition is the appropriate vehicle to decide the question, which is a critical consideration in determining whether certiorari will be granted.

This week, the Supreme Court has been presented with petitions involving issues such as whether the 11th Amendment prevents the entry of injunctive and declaratory relief in federal court against a governor, attorney general and state-court administrator to prevent the continued enforcement of a categorical and nonwaivable state ban against granting a legal change of name to any person who is not a United States citizen; and whether, under 8 U.S.C. § 1158(b)(1)(B)(ii), an asylum applicant whose testimony is deemed credible, but who the Immigration Judge determines “should provide evidence that corroborates otherwise credible testimony,” must be given the opportunity to obtain and provide such evidence. 

The petitions of the week are:

17-1637

Issues: (1) Whether the 11th Amendment prevents the entry of injunctive and declaratory relief in federal court against a governor, attorney general and state court administrator to prevent the continued enforcement of a categorical and nonwaivable state ban against granting a legal change of name to any person who is not a United States citizen; and (2) whether the article III standing doctrines of causation and redressability bar the entry of injunctive and declaratory relief in federal court against a county clerk of court to prevent the continued enforcement of a categorical and nonwaivable state ban on granting a legal change of name to any person who is not a United States citizen.

17-1652

Issue: Whether an agreement that requires a customer to resolve a dispute through arbitration is enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., notwithstanding the provisions of the Bankruptcy Code providing for a statutorily enforceable discharge of a debtor’s debts.

17-1700

Issues: (1) Whether the Pennsylvania Constitution’s substantive provisions and whatever interpretation Pennsylvania courts afford them, however atextual, can restrict time, place and manner rules Pennsylvania’s lawmakers have passed to govern congressional elections pursuant to the elections clause of the United States Constitution; and (2) whether the Pennsylvania Supreme Court, which has no lawmaking authority, may, consistent with the elections clause, adopt a redistricting plan as a remedy solely for state-law violations and, if so, whether it may, consistent with the elections clause, craft redistricting wholesale in creating that remedy.

17-1701

Issue: Whether, under 8 U.S.C. § 1158(b)(1)(B)(ii), an asylum applicant whose testimony is deemed credible, but whom the Immigration Judge determines “should provide evidence that corroborates otherwise credible testimony,” must be given the opportunity to obtain and provide such evidence.

17-1712

Issues: (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof.

17-1713
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether the Occupational Safety and Health Act “preempts all state occupational safety and health laws” relating to issue covered by federal standards “unless they are included in the state plan,” as the U.S. Court of Appeals for the 9th Circuit has held; or whether a state may employ supplemental enforcement mechanisms for workplace safety standards even if not included in the state plan, as the Supreme Court of California held in this case.

 

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