Petitions to watch | Conference of 06.23.11
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:
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of Bet Tzedek Legal Services et al.
- Amicus brief of the State of California
- Amicus brief of the Commission for Art Recovery
- Petitioner's reply
- Petitioner's second supplemental brief
- Petitioner's supplemental brief
CVSG Information:
- Invited: October 4, 2010
- Filed: May 27, 2011 (Deny)
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:
- Opinion below (DC Circuit)
- Petition for certiorari
- Brief of CACI International in opposition
- Brief of Titan Corp. in opposition
- Petitioners' reply
- Amicus brief of Professors of Federal Courts et al.
- Amicus brief of Retired Military Officers
- Amicus brief of Human Rights First et al.
CVSG Information:
- Invited: October 4, 2010
- Filed: May 27, 2011 (Deny)
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:
- Invited: January 18, 2011
- Filed: May 26, 2011 (Deny)
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:
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioners' reply
- Petitioners' supplemental brief
CVSG Information:
- Invited: December 13, 2010
- Filed: May 24, 2011 (Deny)
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:
- Opinion below (10th Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of the National Congress of American Indians
- Petitioner's reply
- Respondents' supplemental brief
- Petitioner's supplemental brief
CVSG Information:
- Invited: February 22, 2011
- Filed: May 27, 2011 (Deny)
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:
- Opinion below (2d Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of the International Municipal Lawyers Association, et al.
- Petitioner's reply
- Petitioner's supplemental brief
CVSG Information:
- Invited: February 22, 2011
- Filed: May 25, 2011 (Deny)
Kingdom of Spain v. Estate of Claude Cassirer (Granted )
Docket: 10-786
Issue(s): 1. Whether the Foreign Sovereign Immunities Act “expropriation exceptionâ€
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:
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioners' reply brief
- Petitioners' supplemental brief
CVSG Information:
- Invited: March 21, 2011
- Filed: May 27, 2011 (Deny)
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:
- Invited: February 28, 2011
- Filed: May 26, 2011 (Deny)
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:
- Opinion below (Fed. Cir.)
- Amicus brief of TEVA Pharmaceuticals USA, Inc.
- Amicus brief of Consumer Federation of America et al.
- Amicus brief of Mylan Pharmaceuticals, Inc.
- Amicus Generic Pharmaceutical Association
CVSG Information:
- Invited: March 28, 2011
- Filed: May 26, 2011 (Grant)
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:
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of National Association of Manufacturers
- Amicus brief of Japan Competition Law Forum
- Amicus brief of the American Bar Association
- Amicus Brief of National Association of Criminal Defense Lawyers et al.
- Amicus brief of the Chamber of Commerce of the United States et al.
- Amicus brief of the Washington Legal Foundation
- Petitioner's reply
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:
- Denial of rehearing en banc (Federal Circuit)
- Summary affirmance (Federal Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioners' reply
- Amicus brief of Bar Associations
- Amicus brief of the American Bar Association
- Amicus brief of International Municipal Lawyers Association
- Amicus brief of Federal Judges Association
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:
- Opinion below (9th Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of the American Association for Justice in support of petitioner
- Amicus brief of CIOCA in support of petitioner
- Amicus brief of the John Marshall Law School Veterans Legal Support Center et al.
- Amicus brief of Peace Through Law Foundation et al.
- Amicus Brief of Point Man International Ministries
- Amicus brief of Major General (Retired) Charles E. Tucker et al.
- Amicus brief of Veterans' Equal Rights Protection Advocacy (forthcoming)
- Petitioner's reply
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:
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/