At its October 5, 2012 Conference, the Court will consider such issues as the Arizona voter registration statute, regulation of rates for electricity, credit for foreign taxes, federal jurisdiction over patent malpractice claims, and Indian Tucker Act jurisdiction.

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.

Hepting v. AT&T Corp.

Docket: 11-1200
Issue(s): (1) In the case of a federal statutory claim, whether Congress may grant the Attorney General the power to choose which of two inconsistent statutory standards should govern the claim; (2) in the case of a state-law claim, whether Congress may grant the Attorney General the power to choose whether the state law governing the claim should be preempted by federal law; (3) in the case of a federal constitutional claim, whether Congress may grant the Attorney General the power to choose whether to exclude the claim from the jurisdiction of the federal and state courts; and (4) even if Congress may grant the Attorney General the powers described in Questions One, Two, and Three, whether Congress provided an intelligible principle limiting the executive’s discretion in exercising those powers.

Certiorari stage documents:

CCA Associates v. United States

Docket: 11-1352
Issue(s): (1) Whether the Emergency Low Income Housing Preservation Act of 1987 and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 effected a taking of petitioner’s property without just compensation in violation of the Fifth Amendment of the Constitution because the legislation required petitioner to house qualifying tenants for a period of years and otherwise unfairly compelled petitioner, rather than the public as a whole, to bear the societal cost of low-income housing; (2) whether the government breached its contractual obligations to petitioner when it outlawed prepayment because the prepayment right formed part of the overall agreement among petitioner, Department of Housing and Urban Development, and the lender.

Certiorari stage documents:

United States v. Samish Indian Nation (Granted )

Docket: 11-1448
Issue(s): (1) Whether the Tucker Act, 28 U.S.C. § 1491(a)(1), or Indian Tucker Act, 28 U.S.C. § 1505, grants the Court of Federal Claims subject-matter jurisdiction over an Indian tribe’s claim for money damages against the United States, based on the United States’ purported violation of sources of law that do not themselves mandate a damages remedy for their violation; and (2) whether the United States may be required to pay damages for failing to provide an Indian tribe with a statutorily defined portion of a statutory fund, where Congress enacted limited appropriations for that fund and those appropriations were exhausted over a decade before the tribe filed its action for money damages.

Certiorari stage documents:

Byrne v. Wood, Herron & Evans, LLP

Docket: 11-1497
Issue(s): (1) Whether the Federal Circuit departed from the standard this Court articulated in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing for “arising under” jurisdiction of the federal courts under 28 U.S.C. §1338, when it held that state law legal malpractice tort claims which involve no actual patents and have no impact on actual patent rights come within the exclusive jurisdiction of the federal courts because a patent was involved in the underlying litigation; and (2) whether the Federal Circuit’s overly broad and mistaken standard has caused a conflict among state courts and federal courts regarding federal jurisdiction with some other courts declining to assume federal jurisdiction of these state law tort cases.

Certiorari stage documents:

City of Arlington v. FCC (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioners in these cases.
Docket: 11-1545
Issue(s): Whether a court should apply Chevron U.S.A. Inc. v. NRDC, Inc., to review an agency’s determination of its own jurisdiction.

Certiorari stage documents:

Metropolitan Edison Co. v. Pennsylvania Public Utility Commission

Docket: 12-4
Issue(s): (1) Whether, contrary to a decision of the Fifth Circuit, the Federal Power Act and filed rate doctrine permit a state public utility commission to deny recovery of FERC-mandated charges by classifying those costs differently from the entity responsible for administering the federal tariff on the ground that the tariff and FERC’s orders do not “unambiguously” or “explicitly” foreclose the state’s chosen classification; and (2) whether, contrary to a decision of the D.C. Circuit, “transmission line losses” reflect the costs of generating electricity rather than the costs of transmitting it.

Certiorari stage documents:

Trudeau v. Federal Trade Commission

Docket: 12-6
Issue(s): (1) Whether a district court exercising inherent equitable power may impose a monetary sanction in an amount that exceeds the defendant’s unjust enrichment (as the Seventh, Eighth, and Ninth Circuits have held, in conflict with the Second, Third, and Eleventh Circuits); (2) whether the standard of Rufo v. Inmates of Suffolk County Jail – which held that Federal Rule of Civil Procedure 60(b)(5) permits modifying consent decrees based on a “significant change in circumstances” – applies to all modification requests (as the First, Sixth, and Ninth Circuits have held), only those made by defendants (as the Third and D.C. Circuits have held), only those in institutional reform cases (as the Federal Circuit has held), only those in cases affecting the public interest (as the Second Circuit has held), or only those made by defendants in institutional reform cases (as the Seventh Circuit held here); and (3) whether advertisements for a book that extensively quote the book are “inextricably intertwined” with fully protected speech and thus entitled to full First Amendment protection.

Certiorari stage documents:

McBurney v. Young (Granted )

Docket: 12-17
Issue(s): Whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens.

Certiorari stage documents:

Arizona v. The Inter Tribal Council of Arizona, Inc. (Granted )

Docket: 12-71
Issue(s): (1) Whether the Ninth Circuit erred in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and (2) whether the Ninth Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Certiorari stage documents:

Solutia Inc. v. McWane Inc.

Docket: 12-89
Issue(s): Whether, under the Comprehensive Environmental Response, Compensation, and Liability Act, a party who incurs response costs conducting a cleanup under a consent decree may pursue a cost recovery claim under Section 107(a)(4)(B) or is limited to a contribution claim under Section 113(f)(3)(B) as its exclusive remedy.

Certiorari stage documents:

PPL Corp. and Subsidiaries v. Commissioner of Internal Revenue (Granted )

Docket: 12-43
Issue(s): Whether, in determining the creditability of a foreign tax, courts should employ a formalistic approach that looks solely at the form of the foreign tax statute and ignores how the tax actually operates, or should employ a substance-based approach that considers factors such as the practical operation and intended effect of the foreign tax.

Certiorari stage documents:

McNeil-PPC, Inc. v. Hutto

Docket: 12-122
Issue(s): Whether the preemption rule set forth in PLIVA, Inc. v. Mensing applies to a state-law failure-to-warn claim challenging an over-the-counter (OTC) drug label, where the label was consistent with the applicable OTC monograph and could not be changed by the manufacturer without prior approval from the Food and Drug Administration.

Certiorari stage documents:


Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of October 5, 2012, SCOTUSblog (Oct. 3, 2012, 11:30 AM),