This edition of “Petitions to watch” features cases up for consideration at the Justices' June 23 Conference.  These are 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.

Von Saher v. Norton Simon Museum of Art at Pasadena

Docket: 09-1254
Issue(s): (1) Whether, in enacting a state statute extending the statute of limitations applicable to claims for the recovery of property stolen during the Holocaust against museums and galleries, the State of California was addressing an area of “traditional state responsibility” without intruding on the federal foreign affairs power; (2) whether a state statute extending the statute of limitations for the recovery of property stolen during the Holocaust, which does not conflict with any federal statute, treaty or policy, is preempted by the federal foreign affairs power to make and resolve war; and (3) whether California Code of Civil Procedure § 354.3 is facially unconstitutional when the application to the case at bar poses no constitutional infirmity.

Certiorari stage documents:

CVSG Information:

Saleh v. Titan Corp.

Docket: 09-1313
Issue(s): 1) Whether the court of appeals erred by finding that claims for torture and other war crimes cannot be brought against private actors under the Alien Tort Statute; and 2) whether the court of appeals erred by creating a “battle-field preemption” doctrine that extends derivative sovereign immunity to contractors.

Certiorari stage documents:

CVSG Information:

National Meat Association v. Harris (Granted )

Docket: 10-224
Issue(s): (1) Did the Ninth Circuit err in holding that a presumption against preemption requires a narrow interpretation of the Federal Meat Inspection Act's express preemption provision, in conflict with this Court's decision in Jones v. Rath Packing Co. (1977) that the provision must be given a broad meaning? (2) When federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA? (3) Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the premises, facilities, [or] operations of federally regulated slaughterhouses?

Certiorari stage documents:

CVSG Information:

Brown v. Rincon Band of Luiseno Mission Indians

Docket: 10-330
Issue(s): (1) Whether a state demands direct taxation of an Indian tribe in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it bargains for a share of tribal gaming revenue for the state's general fund; and (2) whether a court exceeds its jurisdiction to determine the state's good faith in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it weighs the relative value of concessions offered by the parties in those negotiations.

Certiorari stage documents:

CVSG Information:

Osage Nation v. Irby

Docket: 10-537
Issue(s): (1) Whether, in determining whether Congress "disestablished an Indian reservation," pursuant to Solem v. Bartlett (1984), courts are limited to the statutory text, legislative history, and views of the Executive Branch or can instead also consider other external indicia; and (2) whether the lower court properly ruled that a Native American tribe's reservation had been "disestablished."

Certiorari stage documents:

CVSG Information:

City of New York v. The Permanent Mission of India to the United Nations

Docket: 10-627
Issue(s): 1) Whether, in determining whether Congress authorized the Secretary of State ("Secretary") to preempt traditional state taxing powers by designating certain exemptions from state and local property tax laws under The Foreign Missions Act, 22 U.S.C. §§ 4301 et seq. ("FMA"), courts should defer to the Secretary's own interpretation of her FMA powers; 2) whether the FMA authorizes the Secretary's preemption of state and local property tax laws; and 3) whether upholding the Secretary's creation and conferral of retroactive tax exemptions under the FMA is contrary to Supreme Court precedent.

Certiorari stage documents:

CVSG Information:

Kingdom of Spain v. Estate of Claude Cassirer (Granted )

Docket: 10-786
Issue(s): 1. Whether the Foreign Sovereign Immunities Act “expropriation exception” permits U.S. courts to strip a foreign sovereign of its presumptive sovereign immunity simply because it owns property allegedly taken in violation of international law by another nation? 2. Whether a plaintiff relying on the FSIA’s expropriation exception must exhaust available remedies in the relevant country before invoking the jurisdiction of U.S. courts?

Certiorari stage documents:

CVSG Information:

United States ex rel. Summers v. LHC Group.

Docket: 10-827
Issue(s): Must a False Claims Act lawsuit always be dismissed if the lawsuit was not filed under seal at the outset, or is the question of dismissal to be determined by a balancing test?

Certiorari stage documents:

CVSG Information:

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S (Granted )

Docket: 10-844
Issue(s): Whether the counterclaim provision of the Hatch-Waxman Act applies when (1) there is an approved method of using the drug that the patent does not claim, and (2) the brand submits patent information to the FDA that misstates the patent's scope, requiring correct[ion].

Certiorari stage documents:

CVSG Information:

Coleman v. Maryland Court of Appeals (Granted )

Docket: 10-1016
Issue(s): Whether Congress constitutionally abrogated states' Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.

Certiorari stage documents:

Sackett v. Environmental Protection Agency (Granted )

Docket: 10-1062
Issue(s): (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704; and (2) whether, if not, petitioner's inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Certiorari stage documents:

White & Case, LLP v. United States

Docket: 10-1147
Issue(s): Whether a grand jury subpoena always trumps a civil protective order, thus allowing prosecutors to obtain discovery materials from a parallel civil action, regardless of any countervailing considerations.

Certiorari stage documents:

Thomas v. Louisiana Department of Social Services

Docket: 10-1171
Issue(s): Whether Heck v. Humphrey (1994), which requires a prisoner to favorably overturn his conviction before suing for damages, applies when circumstances - such as a short period of incarceration or sentence of probation - render federal habeas relief unavailable?

Certiorari stage documents:

Sergeants Benevolent Ass’n Health and Welfare Fund v. Eli Lilly and Co.

Docket: 10-1173
Issue(s): (1) Whether the court of appeals erred in holding that petitioners could not establish the causation element of their RICO claim because the presence of prescribing physicians in the chain of causation constituted an intervening factor breaking the link between respondent's fraudulent marketing and petitioners' foreseeable injuries and (2) whether, alternatively, this Court should dispose of this petition in light of the Court’s decision in Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403 because the court below - like the Fifth Circuit in Halliburton - based its denial of class certification on the conclusion that petitioners could not establish the causation element of their claim on the merits.

Certiorari stage documents:

Ligon v. LaHood

Docket: 10-1185
Issue(s): Whether an administrative procedure enacted for one federal agency set forth in 49 U.S.C. § 46110(a) preempts the Age Discrimination in Employment Act (ADEA), when a federal employee has suffered age discrimination and age retaliation.

Certiorari stage documents:

Mims v. Arrow Financial Services, LLC (Granted )

Docket: 10-1195
Issue(s): Did Congress divest the federal district courts of their federal-question jurisdiction under 28 U.S.C. § 1331 over private actions brought under the Telephone Consumer Protection Act?

Certiorari stage documents:

Kappos v. Hyatt (Granted )

Docket: 10-1219
Issue(s): Whether a plaintiff, who is appealing the denial of an application of a patent by commencing a civil action against the Director of the United States Patent and Trademark Office (PTO) in a federal district court pursuant to 35 U.S.C. § 145, may introduce new evidence that could have been presented to the agency in the first instance; and 2) whether, when new evidence is introduced under Section 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO.

Certiorari stage documents:

Tropp v. Corporation of Lloyd’s

Note: Goldstein, Howe & Russell represents the petitioner in this case, which is listed without regard to the likelihood that it will be granted.
Docket: 10-1249
Issue(s): 1) Is the Uniform Foreign Money-Judgments Recognition Act, as applied by New York and other jurisdictions, consistent with the requirements of the Due Process Clause? 2) Under what circumstances is a forum selection clause in an international contract rendered unenforceable in federal court due to limitations on the availability of a remedy in the foreign forum selected?

Certiorari stage documents:

United States v. Jones (Granted )

Docket: 10-1259
Issue(s): (1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

Certiorari stage documents:

Federal Communications Commission v. Fox Television Stations, Inc. (Granted )

Docket: 10-1293
Issue(s): Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution. (Sotomayor, J., recused).

Certiorari stage documents:

Puiatti v. Buss

Docket: 10-1302
Issue(s): Does a joint capital penalty phase implicate a defendant's Eighth and Fourteenth Amendment rights to an individualized sentencing determination; if so, are those rights violated when a trial court fails to sever a joint capital penalty proceeding despite a likelihood of prejudice and confusion, and never clearly instructs the jury to consider the aggravating and mitigating evidence separately as to each defendant, and to return different sentences if the evidence so warrants.

Certiorari stage documents:

Heydt-Benjamin v. Heydt-Benjamin

Note: Goldstein, Howe & Russell, P.C. serves as counsel to the petitioner this case.
Docket: 10-1303
Issue(s): What is the test for determining a child's country of habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction?

Certiorari stage documents:

Evans-Marshall v. Board of Education of Tipp City Exempted Village School District

Docket: 10-1305
Issue(s): Should Garcetti v. Ceballos be extended to hold that all in-class speech by teachers in the public schools is categorically unprotected by the First Amendment?

Certiorari stage documents:

Jones v. United States

Docket: 10-1330
Issue(s): Do district courts have jurisdiction to consider Title VII claims by federal employees involving Federal Aviation Act safety orders?

Certiorari stage documents:

The following petitions have been re-listed for the Conference of June 23.  If any other paid petitions are re-distributed for this Conference, we will add them below as soon as their re-distribution is noted on the docket.

United States v. Juvenile Male

Docket: 09-940
Issue(s): Whether application of the registration and notification provisions of the Sex Offender Registration and Notification Act to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment violates the ex post facto clause of the Constitution.

Certiorari stage documents:

Beer v. United States

Docket: 09-1395
Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Certiorari stage documents:

Zuress v. Donley

Note: Goldstein, Howe & Russell represents the petitioner in this case, which is listed without regard to its likelihood of being granted.
Docket: 10-374
Issue(s): In what circumstances are dual-status technicians, who perform civilian roles within military departments, protected by federal statutes prohibiting employment discrimination?

Certiorari stage documents:

Wetherill v. McHugh

Docket: 10-638
Issue(s): Whether the claims of a dual-status National Guard technician alleging employment discrimination under Title VII of the Civil Rights Act of 1964 are jurisdictionally barred by the doctrine of Feres v. United States and its progeny?

Certiorari stage documents:

Witt v. United States

Docket: 10-885
Issue(s): Should the Feres doctrine be overruled, in whole or in part, on the ground that the Federal Tort Claims Act should not be construed to include a non-textual exception barring claims for injuries arising out of activity incident to service or, if there is such an exception, it does not bar a claim for injury to a service member caused by medical malpractice at a military hospital when the service member was on leave when admitted to the hospital?

Certiorari stage documents:

Messerschmidt v. Millender (Granted )

Docket: 10-704
Issue(s): (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?

Certiorari stage documents:

Ochoa v. Holder

Docket: 10-920
Issue(s): (1) Whether federal courts are categorically incompetent to review a Board of Immigration Appeals decision denying a motion to reopen removal proceedings sua sponte, even where that decision applies a legal standard, on the ground that such decisions are "committed to agency discretion by law"; and (2) whether the court of appeals erred by disregarding the BIA’s stated grounds for its decision, in conflict with SEC v. Chenery Corp. (1943) and the decisions of other circuits.

Certiorari stage documents:

Larson v. United States

Docket: 10-1049
Issue(s): (1) Whether the court of appeals correctly held that any ambiguity in the application of the "economic substance" doctrine did not negate the jury’s finding that petitioners acted willfully in committing tax evasion; and (2) whether the court of appeals correctly held that 26 U.S.C. § 7201, which provides that "[a]ny person who willfully attempts in any manner to evade or defeat any tax . . . [is] guilty of a felony," may be applied to petitioners because they assisted third-party taxpayers in filing false tax returns.

Certiorari stage documents:

Cavazos v. Smith

Docket: 10-1115
Issue(s): Did the Ninth Circuit on second remand from this Court exceed its authority under the deferential standard for habeas corpus review in 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Certiorari stage documents:

Knox v. Service Employees Int’l Union, Local 1000 (Granted )

Docket: 10-1121
Issue(s): (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?

Certiorari stage documents:

Martel v. Clair (Granted )

Docket: 10-1265
Issue(s): Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

Certiorari stage documents:

Posted in Cases in the Pipeline, Featured

Recommended Citation: Christa Culver, Petitions to watch | Conference of 06.23.11, SCOTUSblog (Jun. 24, 2011, 5:25 PM), http://www.scotusblog.com/2011/06/petitions-to-watch-conference-of-06-23-11/