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Petitions We're Watching

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Petitions for Conference of 05.24.2012

Docket Case Page Issue(s) CVSG
11-1175 Marx v. General Revenue Corp. (1) Whether a prevailing defendant in a Fair Debt Collection Practices Act (FDCPA) case may be awarded costs for a lawsuit that was not “brought in bad faith and for the purpose of harassment,” when the FDCPA provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs” and Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs -- other than attorney’s fees -- should be allowed to the prevailing party”; and (2) whether the FDCPA’s prohibition on debt collectors communicating with any person other than the consumer (with an exception that allows a debt collector to communicate with a debtor’s employer solely to acquire “location information” about the debtor, but provides that a location information inquiry shall “not state that [the] consumer owes any debt” and not indicate “that the communication relates to the collection of a debt”) ceases to apply when a debt collector, contacting a third party in connection with the collection of a debt, does not indicate the reason for the communication. N/A
11-1165 Mattos v. Agarano (1) Whether a reasonable official would have understood that it was excessive force in violation of the Fourth Amendment for a police officer to rush into a situation with other officers present and deploy a Taser against a suspect in her own home who was not a potential threat to the officers or the public, who was not actively resisting arrest, and was simply attempting to calm a heated situation and comply with another officer’s instructions to speak outside of her house; and (2) whether summary judgment was properly denied in an excessive force case where genuine issues of disputed fact existed as to whether the use of the Taser on Jayzel Mattos was reasonable. N/A
11-1074 Jacobs Engineering Group v. Minnesota Whether a state may, consistent with the Due Process Clause of the Fourteenth Amendment, retroactively revive liabilities that have been long-extinguished under a statute of repose. N/A
11-1053 Coleman v. Johnson (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed given that it conflicts with this Court’s holdings that it is not the province of a federal habeas court to examine state court application of state law and that only noncompliance with clearly-established federal law will render a state’s criminal judgment susceptible to collateral attack in federal court; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution in connection with its Jackson v. Virginia analysis due to its subjective view that those inferences do not “more likely than not flow from” the trial evidence should be reversed given that it conflicts with this Court's holdings that a federal habeas court conducting a Jackson review must view the evidence in the light most favorable to the prosecution, presume that the jury resolved any conflicting factual inferences in favor of the prosecution, and defer to that resolution; (3) whether the court of appeals’ determination, which patently relies upon its own subjective conclusions regarding witness credibility and the proper weight to be accorded the record evidence, should be reversed given that it contravenes this Court’s repeated admonitions that a federal habeas court conducting a Jackson review is strictly forbidden from substituting its judgment for that of the jury on weight and credibility issues; (4) whether the court of appeals’ determination, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed given this Court’s holdings that a federal habeas court engaged in a Jackson analysis must apply the substantive elements of the criminal offense as defined by state law; and (5) whether the court of appeals’ de facto finding that the state courts’ conviction was based on an unreasonable determination of the facts in light of the evidence presented should be reversed given that it fails to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l) and therefore conflicts with this Court’s holdings that the presumption of correctness afforded state court factual findings cannot be overridden absent clear and convincing contrary evidence. N/A
11-1045 Brooks v. Daman Whether any reasonable official would have understood that it was excessive force in violation of the Fourth Amendment for police officers to deploy a Taser, three times over the course of less than one minute, against a woman who was seven months pregnant, simply because the woman refused to exit her vehicle during a routine traffic stop? N/A
11-1032 Agarano v. Mattos Whether the officers’ use of a Taser on Jayzel Mattos was excessive force under the Fourth Amendment to the U.S. Constitution? N/A
11-1011 Howes v. Walker (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome. N/A
11-898 Daman v. Brooks (1) Whether – when officers applied a Taser to the plaintiff, who was under arrest and resisting officers’ efforts to remove her from her car – the Ninth Circuit erred in finding the Taser use unconstitutional where (a) it was the least risky pain compliance option available, and (b) the decision is in conflict with Graham v. Connor’s holding that an arrest necessarily carries with it the authority to use some degree of force; (2) whether the Ninth Circuit erred in holding that the plaintiff stated a Fourth Amendment excessive force claim despite declaring that the record was insufficient to assess the level of force presented by the drive-stun Taser, particularly where the court failed to address whether any less-risky alternatives were available to the officers; (3) whether the Ninth Circuit should have found the use of the Taser constitutional as a matter of law where the officers chose the least risky force option, the result reached by the original Ninth Circuit panel; and (4) whether the Ninth Circuit’s opinion conflicts with other circuits’ decisions on Taser pain compliance applications in similar circumstances. N/A
11-890 Bright v. Holder (1) Whether a noncitizen who fails to respond to an agency order to report for removal is a “fugitive” for purposes of applying the “fugitive disentitlement” doctrine where the petitioner has not absconded and his address is known to the court and the government; (2) whether a petitioner is a “fugitive” for purposes of applying the “fugitive disentitlement” doctrine even if he has been detained and is in government custody; and (3) whether the doctrine is a per se jurisdictional bar to appellate review, or merely authorizes a court to exercise its discretion and weigh the equities in a particular case. N/A
11-301 Saint-Gobain Ceramics & Plastics v. Siemens Medical Solutions USA (1) Whether the Patent and Trademark Office’s (“PTO”) presumptively valid finding that an invention is not obvious and is thus patentable over a prior art patent is impermissibly nullified or undermined when a jury is allowed to find, by a mere preponderance of the evidence, that the patented invention is “insubstantially different” from the very same prior art patent, and thus infringes that prior art patent under the “doctrine of equivalents”; and (2) whether, as the dissent below warned, the Federal Circuit’s failure to impose a heightened evidentiary standard to ensure that juries do not use the doctrine of equivalents to override the PTO’s presumptively valid non-obvious determinations undermines the reasonable reliance of competitors and investors on such PTO determinations, thereby intolerably increasing uncertainty over claim scope, fostering litigation, “deter[ring] innovation and hamper[ing] legitimate competition.” Dyk, J., dissenting from the denial of rehearing en banc. 11/07/2011

Petitions for Conference of 05.31.2012

Docket Case Page Issue(s) CVSG
11-1069 Spot Runner v. WPP Luxembourg Gamma Three Sarl Whether the Ninth Circuit erred by holding that a district court may enter a judgment dismissing a claim without prejudice for the express purpose of enabling a plaintiff to appeal the Rule 12(b)(6) dismissal of that claim instead of amending it. N/A
11-972 Scrushy v. U.S. In the context of a First Amendment protected contribution to an issue advocacy campaign, whether the McCormick v. United States holding that campaign contributions cannot constitute bribery unless “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” means “explicit,” or whether something less than proof of an “explicit promise” can be sufficient to sustain a conviction. N/A
11-955 Siegelman v. U.S. Whether the McCormick v. United States standard -- under which a connection between a campaign contribution and an official action is a crime “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” -- requires proof of an “explicit” quid pro quo in the sense of actually being communicated expressly, or whether there can be a conviction based instead only on the inference that there was an unstated and implied agreement connecting a campaign contribution and an official action; (2) whether 18 U.S.C. § 666 and “honest services” law (under 18 U.S.C. § 1346) cover campaign or referendum contributions as alleged bribes at all; and (3) whether the “intent” clause of 18 U.S.C. § 1512(b)(3) requires proof of the specific intent to interfere with communications to law enforcement, or whether it is satisfied by proof of an intent to engage in a “coverup” more generically. N/A
11-950 Dominguez v. U.S. (1) Whether the Eleventh Circuit’s determination that the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires no proof of criminal intent creates a circuit conflict warranting review; and (2) whether the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires proof of criminal intent as an essential element, such that a defendant is entitled to present evidence of good faith compliance with the law. (3) Is a defendant in a prosecution for violating the alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), entitled to an instruction on “willfulness”? N/A
11-770 Bailey v. U.S. Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed. N/A
11-591 Slough v. U.S. When the government has compelled individuals to make potentially incriminating statements, whether prosecutors’ subsequent use of those statements in deciding to indict those individuals violates the Fifth Amendment’s Self-Incrimination Clause and the use immunity principles of Kastigar v. United States. N/A

Petitions for Conference of 06.07.2012

Docket Case Page Issue(s) CVSG
11-1327 Evans v. Michigan Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact. N/A
11-1277 Lebron v. Rumsfeld Whether federal officials responsible for the torture of an American citizen on American soil may be sued for damages under the Constitution. N/A
11-1262 White v. Rice (1) Whether, in federal habeas review, a state court’s selection of one reasonable reading of the record over another can constitute an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2); and (2) whether 28 U.S.C. § 2254(e)(1)’s command that a habeas petitioner must overcome the presumption of correctness of a state factual determination with clear and convincing evidence fits with 28 U.S.C. § 2254(d)(2)’s bar of federal habeas relief on a state court merits adjudication unless the decision was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” N/A
11-1115 U.S. v. Trunk Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause. N/A
11-1097 Estate of Henson v. Krajca What degree of culpability is required to establish that pretrial detention conditions violate the Due Process Clause of the Fourteenth Amendment? N/A
11-1085 Amgen Inc. v. Connecticut Retirement Plans and Trust Funds (1) Whether, in a misrepresentation case under Securities and Exchange Commission Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory; and (2) whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory. N/A
11-1024 City of New Haven v. Briscoe Whether a lower court may disregard this Court’s express guidance and create Title VII disparate-impact liability for actions this Court ordered an employer to undertake as a remedy for a Title VII disparate-treatment violation. N/A
11-998 Mount Soledad Memorial Association v. Trunk Whether the Mount Soledad Veterans Memorial – recognized by Congress as a national veterans memorial that has stood for over fifty years “as a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States” – violates the Establishment Clause because it contains a cross among numerous other secular symbols of patriotism and sacrifice. N/A
11-959 King v. U.S. (1) Whether, when a false statement is made to an individual who has no connection whatsoever to the federal government, the false statement is nonetheless made in a “matter within the jurisdiction” of the United States, in violation of 18 U.S.C. § 1001, if the subject matter of the statement involves issues over which the federal government may exercise regulatory authority; and (2) whether the government exceeds its power under the Commerce Clause when it criminalizes underground injections of clean water into intrastate aquifers with no connection to underground sources of drinking water. N/A
11-941 Swanson v. Morgan Whether, in this qualified immunity appeal from a motion to dismiss, the Fifth Circuit's discussion of the merits of the underlying constitutional issues should be vacated because the Fifth Circuit correctly held that the law was not clearly established, the parties do not have a continuing interest in the legal issues at stake, and the Fifth Circuit's discussion of the constitutional issue constitutes an impermissible advisory opinion. N/A
11-804 Morgan v. Swanson (1) Whether it is clearly established that private non-curricular student speech may not be discriminated against solely on the basis of its religious viewpoint; and (2) whether, at a bare minimum, it is clearly established that private non-curricular student speech that takes place outside of the school and after school hours may not be discriminated against solely on the basis of its religious viewpoint. N/A

Petitions for Conference of 06.14.2012

Docket Case Page Issue(s) CVSG
11-1236 Nelson v. Time Warner Cable Inc. (1) Whether the statute governing Texas’s transition from municipal-level to state-level cable franchising is subject to strict scrutiny under the Speech and Press Clauses of the First Amendment; and (2) whether a federal court of appeals can hold unconstitutional a state statute that has been amended during the pendency of the appeal, without first allowing the state to make a record in defense of the amended statute. N/A
11-1234 Redevelopment Authority of the County of Montgomery, Pennsylvania v. R & J Holding Co. (1) Whether issue preclusion bars a takings claim based on the Fifth Amendment only where the state court expressly decides Fifth Amendment issues or, additionally, where the state court decides the same takings claim under state takings law; and (2) whether, after a federal court’s dismissal of a takings claim under Williamson County Regional Planning Comm’n v. Hamilton Bank and the assertion in state court of an England v. Louisiana State Bd. of Med. Examiners reservation, a federal court -- circumventing San Remo Hotel, L.P. v. City & County of San Francisco and Williamson County -- can rely on that reservation, notwithstanding its invalidity, in refusing to apply claim preclusion to bar the reasserted takings claim. N/A
11-1231 Sebelius v. Auburn Regional Medical Center Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary, 42 U.S.C. § 1395oo(a)(3), is subject to equitable tolling. N/A
11-1221 Hillman v. Maretta Whether 5 U.S.C. § 8705(a), any other provision of the Federal Employees Group Life Insurance Act of 1954 (FEGLIA), or any regulation promulgated thereunder preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of FEGLI insurance proceeds after they have been distributed. N/A
11-1179 American Tradition Partnership v. Bullock Whether Montana is bound by the holding of Citizens United, that a ban on corporate independent political expenditures is a violation of the First Amendment, when the ban applies to state, rather than federal, elections. N/A
11-1173 Brown v. Calamos Does the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f), require dismissing with prejudice a class action complaint that contains no claim for relief “alleging a misrepresentation or omission of a material fact”? N/A
11-1160 FTC v. Phoebe Putney Health System (1) Whether the Georgia legislature, by vesting a local government entity with general corporate powers to acquire and lease out hospitals and other property, has “clearly articulated and affirmatively expressed” a “state policy to displace competition” in the market for hospital services, thus rendering federal antitrust laws inapplicable under the “state action doctrine”; and (2) whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity -- which acquired the only competitor of a private actor at the private actor’s behest -- neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital’s operation. N/A
11-1155 Blue Cross and Blue Shield of Montana v. Fossen Whether a substantive state-law insurance standard saved from preemption under the insurance saving clause of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1144(b)(2)(A), can be enforced through state-law remedies or instead is enforceable exclusively through ERISA’s enforcement scheme, 29 U.S.C. § 1132. N/A
11-1119 Yang v. Holder Whether -- under 8 C.F.R. § 1208.13(a), which provides that “[t]he testimony of [an asylum] applicant, if credible, may be sufficient to sustain the burden of proof without corroboration” -- an immigration judge must explicitly determine whether an asylum applicant’s testimony is credible before denying asylum for failure of the applicant to provide evidence corroborating his or her asylum application. N/A
11-1101 Timberridge Presbyterian Church v. Presbytery of Greater Atlanta Whether the “neutral principles” doctrine embodied in the Religion Clauses of the First Amendment permits imposition of a trust on church property when the creation of that trust violates the state’s property and trust laws. N/A
11-1094 Martel v. Tuite Whether a federal court may grant habeas corpus relief to a state prisoner without determining that the state court’s “harmless beyond a reasonable doubt” ruling was objectively unreasonable. N/A
11-882 McCall v. U.S. (1) Whether petitioner’s convictions must be reversed because “reckless” conduct does not meet the mens rea requirement under the federal criminal securities laws; or (2) whether, alternatively, petitioner was entitled to an instruction defining “recklessness” to mean at least what it means in civil securities fraud cases – i.e., “an intentional and extreme departure from standards of ordinary care that presents a danger of misleading buyers and sellers that is either known to the defendant or so obvious that he must have been aware of it.” N/A

Petitions for Conference of 06.21.2012

Docket Case Page Issue(s) CVSG
11-1285 U.S. Airways v. McCutchen Whether the Third Circuit correctly held -- in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits -- that Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement. N/A
11-1215 Abdur’Rahman v. Colson (1) When is “cumulative error” a legally permitted basis for relief on federal habeas corpus; (2) is a prosecutor’s suppression of material exculpatory evidence excused whenever the defendant was aware of the facts contained therein, notwithstanding that the suppression prevented the defense from presenting the evidence of those facts to the jury; and (3) is defense counsel’s failure to investigate evidence that has some negative characteristics categorically immune from a claim of ineffective assistance of counsel? N/A
11-1177 Rhodes v. Judiscak Whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is serving a term of supervised release in light of United States v. Johnson, under which a finding that a prisoner was over-incarcerated is an “equitable consideration[ ] of great weight” in a later proceeding to reduce his term of supervised release. N/A
11-1158 Herring v. Florida Whether the Florida Supreme Court’s refusal to permit consideration of the standard error of measurement in its determination of mental retardation in capital cases violates the Eighth and Fourteenth Amendments, which forbid the execution of a mentally retarded person under Atkins v. Virginia. N/A
11-1059 Genesis HealthCare Corp. v. Symczyk Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims. N/A
11-1034 Gabayzadeh v. U.S. (1) Whether the “one book” rule in the Sentencing Guidelines, sections 1B1.11(b)(2) and (3), which requires retroactive application of the latest, harsher guidelines when defendants have committed offenses both before and after the Guidelines have been amended, violates the Ex Post Facto Clause; and (2) whether, after this Court rendered the federal sentencing guidelines advisory in its decision in United States v. Booker, the Ex Post Facto Clause continues to forbid applying amendments to the Guidelines retroactively to increase the presumptive punishment of criminal defendants. N/A
11-1009 Public Citizen v. Federal Energy Regulatory Commission Whether rules of the Federal Energy Regulatory Commission (FERC) establishing a system of “market-based rates” for wholesale electric power conflict with provisions of the Federal Power Act, 16 U.S.C. §§ 824 et seq., commanding that all changes in rates and charges must be publicly filed with the FERC before they go into effect and that all rates must be “just and reasonable,” nonpreferential, and nondiscriminatory. N/A
11-1007 Southeastern Federal Power Customers v. Georgia (1) Whether Article III of the United States Constitution permits an appellate court independently to adjust resource allocations for a federal multipurpose water project based in part on United States Army Corps of Engineers (“Corps”) reports that were never presented to Congress rather than solely on the Corps reports upon which Congress originally relied to authorize and allocate resources for the project. (2) Whether the Eleventh Circuit’s ruling is inconsistent with the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act because it makes judicial review of agency actions unavailable indefinitely, including review of water storage allocations made over a 40 year period, if the agency labeled the actions as “interim” and has not sought to evade judicial review. (3) Whether the Eleventh Circuit created an irreconcilable conflict with the D.C. Circuit by disregarding a directly relevant and fundamentally inconsistent ruling by the D.C. Circuit in the same underlying cases. N/A
11-1006 Alabama v. Georgia Whether, under step one of this Court’s Chevron analysis, in determining whether Congress has “directly spoken to the precise question at issue” – thereby foreclosing an agency’s discretion to interpret a statute it administers – a court may base its conclusion on what it considers to be the best construction of ambiguous language. N/A
11-999 Florida v. Georgia Whether the Army Corps of Engineers must comply with the explicit statutory limit in the Water Supply Act of 1958 that requires Congressional approval before the Corps undertakes a major reallocation of federal reservoir storage to provide local water supply. N/A
11-982 Already, LLC v. Nike Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities. N/A
11-460 Los Angeles County Flood Control District v. Natural Resources Defense Council (1) Whether “navigable waters of the United States” include only “naturally occurring” bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a “navigable water” under the Clean Water Act? (2) When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a “discharge” from an “outfall” under the Clean Water Act, notwithstanding this Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the Act? 01/17/2012
10-1322 DirecTV v. Levin (1) Whether, in a Commerce Clause challenge to a state statute, courts need not examine the effects of the statute if it can be characterized as distinguishing between two competitors based upon their different methods of operation; and (2) whether courts need not examine the statute's effects because some of the beneficiaries of the discriminatory scheme are major interstate companies. 10/03/2011

Petitions for Conference of 09.24.2012

Docket Case Page Issue(s) CVSG
N/A Maryland v. King N/A
11-1329 Strutton v. Meade Whether an individual, civilly committed for being a “sex offender,” or for otherwise exhibiting a mental abnormality posing a danger to others, has a substantive due process right to treatment that may ameliorate the danger posed by his abnormality, particularly where -- as here -- the withheld treatment was designed with the intention of providing a path to at least a conditional release from custody. N/A
11-1321 Velasquez-Otero v. Holder Whether the Board of Immigration Appeals’ unexplained addition of the social visibility requirement for asylum -- that those seeking asylum based on “membership in a particular social group” prove that their claimed groups are socially visible -- under 8 U.S.C. § 1101(a)(42)(A) is arbitrary or capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), or unreasonable under Chevron U.S.A. Inc. v. Natural Res. Def. Council. N/A
11-1318 Alford v. Texas Whether the “routine booking” exception to Miranda v. Arizona applies: (1) unless the officer objectively should have known that his question was likely to elicit an incriminating response, as some courts have held; (2) unless the officer’s intent was to elicit an incriminating response, as other courts have held; or (3) to all questions that serve a legitimate administrative function, regardless of whether the officer should have known that the questions would likely elicit an incriminating response, as still other courts, including the court below, have held. N/A
11-1274 Gabelli v. Securities and Exchange Commission Whether for purposes of applying the five-year limitations period under 28 U.S.C. § 2462 -- which provides that “except as otherwise provided by Act of Congress” any penalty action brought by the government must be “commenced within five years from the date when the claims first accrued” -- the government’s claim first accrues when the government can first bring an action for a penalty, where Congress has not enacted a separate controlling provision. N/A
11-1266 Libertarian Party of Washington State v. Washington State Grange (1) Whether, by denying minor parties, including the Libertarian Party, virtually all access to the general election ballot, Washington’s Initiative I-872 -- which provides that the top two votegetters for each office advance to the general election -- violates the constitutional rights of minor parties and voters; (2) whether, by denying the Libertarian Party the right to disavow false candidacies or to acknowledge its nominee on the ballot or in any official publication, I-872 – which provides that candidates for office shall be identified on the ballot by their self-designated “party preference” -- violates the associational rights of the Libertarian Party; (3) whether, by denying the Libertarian Party the right to disavow false candidacies or to acknowledge its nominee on the ballot or in any official publication, I-872 denies the Libertarian Party trademark protection guaranteed by federal law; and (4) whether the unauthorized use of the trademarked name “Libertarian Party” by the State on election ballots to indicate “party preference” of unaffiliated candidates constitutes competition with the Libertarian Party in violation of the Lanham Act? N/A
11-1263 Washington State Democratic Central Committee v. Washington State Grange (1) Whether, when the State of Washington asserts that a general disclaimer prevents voter perceptions that candidates are associated with the party that the candidate “prefers,” it bears the burden of showing the risk of forced association is in fact reduced to a constitutionally acceptable level; (2) whether the principles articulated by federal courts evaluating trademark misuse claims should be applied by analogy in evaluating the likelihood of voter confusion under “top two” systems, in which the candidate for office may choose to appear on the ballot in conjunction with a political party’s name without the party’s consent; and (3) if Washington’s partisan top two system as implemented need not pass strict scrutiny, whether it nevertheless fails to qualify as a reasonable and politically neutral regulation that advances an important state interest. N/A
11-1229 Michigan Workers’ Compensation Agency v. Ace American Insurance Co. (1) Whether a bankruptcy court’s exercise of its in rem jurisdiction categorically abrogates state sovereign immunity, regardless of the governmental unit’s role in the particular bankruptcy proceeding; and (2) whether the Bankruptcy Code’s abrogation of sovereign immunity extends to a state-law statutory claim that does not involve the discharged debtor. N/A
11-1200 Hepting v. AT&T Corp. (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. N/A
11-1198 Hassoun v. U.S. (1) Whether Federal Rule of Evidence 701 permits a lay witness with no percipient knowledge of conversations to offer “opinions” as to a speaker’s supposed meaning of words used in those conversations; and (2) whether the terrorism sentencing enhancement may be imposed in the absence of the statutorily-required finding that the defendant’s motive is to intimidate, coerce, or retaliate against government conduct. N/A
11-1197 Hadden v. U.S. Whether the government is entitled to full reimbursement under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b), when a beneficiary compromises a tort or other claim and recovers a reduced amount, as the court of appeals held here, or whether the government, like its beneficiary, is entitled to only a proportionate recovery, as the Eleventh Circuit has held. N/A
11-1194 Jayyousi v. U.S. Whether, consistent with the ruling below and that of four other circuits, and contrary to the rule in five circuits, lay opinion testimony satisfies Federal Rules of Evidence 701(a) and (b) -- which require that lay opinion testimony be “rationally based on the witness’s perception” and that it be “helpful” to the factfinder’s determination -- where the witness has no first-hand knowledge of the underlying events about which the witness opines. N/A
11-1182 R. J. Reynolds Tobacco Co. v. Star Scientific Whether the Federal Circuit’s “insolubly ambiguous/amenable-to-construction” test for patent definiteness, which upholds patents whose construed claims fail to inform a skilled artisan of the outer limits of the claimed monopoly, faithfully implements 35 U.S.C. § 112 ¶ 2 -- which requires that a patent application include claims “particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention” -- and decisions of this Court interpreting the provision. N/A
11-1170 Amlong & Amlong, P.A. v. Denny’s (1) Whether the Court should resolve the conflict in circuits regarding how to determine whether attorneys are liable under 28 U.S.C. § 1927 for “unreasonably and vexatiously” multiplying proceedings, where some circuits employ a “reasonably should have known test,” others require a finding of “reckless conduct,” and still others, while agreeing that “bad faith” on the part of attorneys is a requirement, disagree as to whether an objective or subjective test is to be employed; and (2) if petitioners’ behavior was sanctionable under § 1927, whether it was proper for the lower court, in conflict with the Fourth and Tenth Circuits, to affirm a judgment requiring payment of all fees and expenses incurred in the collateral sanctions proceeding amounting to more than 40% of the hours sought, not just the statutorily mandated “excess fees,” without finding that petitioners’ defense was also unreasonable and vexatious. N/A
11-1078 GlaxoSmithKline v. Classen Immunotherapies Whether the Federal Circuit’s interpretation of 35 U.S.C. § 271(e)(1)’s safe harbor from patent infringement liability for drugs – an interpretation which arbitrarily restricts the safe harbor to pre-marketing approval of generic counterparts – is faithful to statutory text that contains no such limitation and decisions of this Court rejecting similar efforts to impose extra-textual limitations on the statute. N/A
11-1062 Micci v. Aleman (1) Whether the Seventh Circuit correctly held, on a question that has fractured the circuits, that police may be civilly liable for the use of a suspect’s custodial statement, obtained either in violation of Miranda v. Arizona or as a result of coercion, where the statement was introduced to charge the suspect but the charges were dismissed prior to trial; and (2) whether the Seventh Circuit correctly held – seemingly for the first time by any federal appellate court – that a police officer unconstitutionally coerced a suspect’s statements by using the routine interview technique of lying to the suspect about the strength of the case against him. N/A
11-965 DaimlerChrysler AG v. Bauman Whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state. N/A
11-952 Pennsylvania v. Banks (1) Whether the Supreme Court of Pennsylvania impermissibly expanded this Court's Eighth Amendment jurisprudence banning the execution of an insane person when it based its finding that George Banks is currently incompetent to be executed on the existence of evidence that he does not consistently exhibit a rational understanding of the existence, meaning, and purpose of his sentence given that Panetti v. Quarterman (2007) only prohibits execution of a mentally ill inmate when his delusions are so severe that he is prevented from reaching a rational understanding of the existence, purpose, and meaning of his sentence; and (2) whether the current distinction in this Court's Eighth Amendment jurisprudence between a death row inmate's “factual” and “rational” understandings of his sentence is problematic and requires clarification given that: (a) a death-row inmate's “rational” understanding of the existence, purpose, and meaning of his sentence can always be accurately characterized as “factual” in nature, which in turn unfairly prevents the prosecution from ever prevailing in a competency-to-be-executed proceeding where the inmate presents any evidence of irrational subjective thought about his death sentence regardless of its intensity or frequency; and (b) the courts, counsel, and mental health experts have difficulty navigating this important but elusive concept as currently articulated. N/A
11-740 Zurn Pex v. Cox When a party proffers expert testimony in support of or in opposition to a motion for class certification, may the district court rely on the testimony in ruling on the motion without conducting a full and conclusive examination of its admissibility under Federal Rule of Evidence 702 and this Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. ? N/A

Petitions Not Set for Conference

Docket Case Page Issue(s) CVSG

Calls for the Views of the Solicitor General

Docket Case Page Issue(s) CVSG
11-889 Tarrant Regional Water District v. Herrmann (1) Whether Congress’s approval of an interstate water compact that grants the contracting states “equal rights” to certain surface water and – using language present in almost all such compacts— provides that the compact shall not “be deemed . . . to interfere” with each state’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact,” manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water; and (2) whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact. 04/02/2012
11-798 American Trucking Associations v. City of Los Angeles (1) Whether 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property,” contains an unexpressed “market participant” exception and permits a municipal governmental entity to take action that conflicts with the express preemption clause, occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services; (2) whether a required concession agreement setting out various conditions a motor carrier must meet to serve a particular port imposes any requirements that are “related to a price, route, or service of any motor carrier” for the purposes of preemption under Section 14501(c)(1); and (3) whether permitting a municipal governmental entity to bar federally licensed motor carriers from access to a port operates as a partial suspension of the motor carriers’ federal registration, in violation of Castle v. Hayes Freight Lines Inc. 03/26/2012
11-796 Bowman v. Monsanto Co. Whether the Federal Circuit erred by (1) refusing to find patent exhaustion – a doctrine which eliminates the right to control or prohibit the use of an invention after an authorized sale - in patented seeds that were sold for planting; and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies. 04/02/2012
11-604 EM Ltd. v. Republic of Argentina Section 1610 of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq., sets forth the circumstances in which property of a foreign state or its agency or instrumentality “shall not be immune” from prejudgment attachment or execution in satisfaction of a judgment. 28 U.S.C. § 1610. Section 1611 restores immunity to property “of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent government, has explicitly waived its immunity.” Id. § 1611(b)(1). In First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) ( “Bancec”), this Court held that in certain circumstances of injustice or control, the separate juridical status of a foreign state's agency or instrumentality should be disregarded. Id. at 629. In such cases, the agency or instrumentality should be treated as the alter ego of the foreign state, and “one may be held liable for the actions of the other.” Id. When a central bank has been adjudicated under this Court’s decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba, to be the alter ego of a foreign state that has waived immunity from attachment and execution, does Section 1611(b)(1) of the Foreign Sovereign Immunities Act immunize the assets held in the name of that bank? (Sotomayor, J., recused.) 01/17/2012
11-556 Vance v. Ball State University Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998) (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim. 2/21/2012
11-431 Rubin v. Islamic Republic of Iran Whether Section 1609 of the Foreign Sovereign Immunities Act of 1976, which provides that the property of a foreign state and its agencies and instrumentalities is immune from execution and attachment unless that property falls within a statutory exception to immunity, permits discovery in aid of execution only with respect to specific property identified by the plaintiff as potentially subject to attachment. (Scalia, J., and Kagan, J., recused) 2/21/2012
11-347 Georgia-Pacific West v. Northwest Environmental Defense Center Whether the Ninth Circuit should have deferred to EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES. (Breyer, J., recused.) 12.12.2011
11-338 Decker v. Northwest Environmental Defense Center (1) Whether a citizen may bypass judicial review of a National Pollutant Discharge Elimination System (NPDES) permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the Clean Water Act (CWA); and (2) whether the Ninth Circuit erred when it held that stormwater from logging roads is industrial stormwater under the rules of the CWA and the Environmental Protection Agency, even though EPA has determined that it is not industrial stormwater? (Breyer, J. recused) 12.12.2011
11-336 Corboy v. Louie (1) Whether petitioners have standing to seek a refund of their own taxes; and (2) whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race. 12.12.2011
10-1555 Pacific Merchant Shipping Association v. Goldstene (1) Whether the Commerce Clause and the Supremacy Clause prohibit California's extraterritorial exercise of its police powers to require the use of specified low-sulfur fuels on foreign- and U.S.-flagged vessels engaged in foreign and interstate commerce while these ships are on the high seas; (2) Whether, by establishing the measure of California's seaward boundary at three geographical miles distant from its coast line, the Submerged Lands Act preempts California's regulations that require foreign- and U.S.-flagged vessels engaged in international and interstate commerce to use specified low-sulfur fuels while those ships are navigating outside of the state's three-mile seaward territorial boundary so established. 10/03/2011
10-1377 Cook v. Rockwell Int'l Corp. (1) Whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and (2) whether, if a federal standard applies, a property owner whose land has been contaminated by radioactive plutonium, resulting in lost property value, must show some physical injury to the property beyond the contamination itself in order to recover for damage to property. 10/03/2011
10-1139 Faculty Senate of Florida Int’l University v. State of Florida (1) Whether Florida's prohibition on the use of state or private funds by universities to support academic travel to Cuba and other disfavored nations is consistent with the Court's decision in Crosby v. National Foreign Trade Council; and (2) whether state-enacted economic sanctions that restrict the use of both public and private funds are preempted by federal law. 5/16/2011
10-947 Bank Melli Iran NY Rep. Office v. Weinstein (1) Whether the Terrorism Risk Insurance Act overrides the Court's holding in First National City Bank v. Banco para el Comercio Exterior de Cuba and applicable treaty provisions by authorizing creditors of a foreign sovereign to execute against assets of the sovereign's juridically distinct instrumentalities; and (2) whether Congress violated Plaut v. Spendthrift Farm, Inc. by retroactively revising the parties bound by a judgment that was already final when the statute was enacted. 6/13/2011

Petitions Held for Another Conference

Docket Case Page Issue(s) CVSG
11-1027 Latif v. Obama (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power. N/A
11-864 Comcast v. Behrend Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3). N/A