SCOTUSblog's "Petitions to Watch"
For the conference of September 24, 2007

Tom Goldstein has deemed the following petitions for certiorari on the Supreme Court's 'paid' docket to have a reasonable chance of being granted.
To view the docket on the Court's web site, which includes the lawyers involved in the case, click the highlighted number in the left hand column.
To read the petitions, briefs in opposition, replies and amicus filings, click on links in the right hand column.

Case Name Issue Filings
06-1082 Virginia v. Moore
Whether the Fourth Amendment requires the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law. (Disclosure: Akin Gump represents the respondent.)
Petition, BIO, reply, Texas
06-1139 Rutherford v. Cleveland
Whether the continuation of a consent decree in hiring minority police officers violated the 14th Amendment. Petition, BIO
06-1171 Koutnik v. Brown
Whether censoring a prisoner's outgoing mail that contains an image of a swastika violates the First Amendment. Petition, BIO,
Dada v. Gonzales
Whether an application for adjustment of immigration status tolls a previously entered agreement for voluntary departure.
Petition, BIO, reply
Coliseum Square Association v. Jackson
Whether a proposed federal action must be likely or certain to affect the quality of the surrounding environment before an agency must prepare an environment impact statement.
Petition, BIO,
BIO, reply, NTHP,
Golphin v. Florida
Whether a pedestrian is seized within the meaning of the Fourth Amendment when a police officer maintains possession of his or her identification in order to conduct a warrants check. Petition, BIO, reply
Baker v. St. Jude
Medical S.C.
Whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360k(a), preempts state law liability suits.
Petition, BIO
Gonzales v. Gao
Whether women forced into arranged marriages may qualify for asylum as members of a "particular social group."
Petition, BIO, reply
Cranford v. United States
Whether the discretionary function exception to the Suits in Admiralty Act's waiver of sovereign immunity bars petitioners' tort action against the United States. Petition, BIO, reply
Lewis v. United States
Whether the failure to follow procedures outlined in the Defense Officer Personnel Management Act results in automatic appointment of the affected officer to the next higher rank. Petition, BIO, reply
Gomez-Perez v. Potter
Whether the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, prohibits retaliation against employees who complain of age discrimination. Petition, BIO, reply
Utah v. Von Ferguson
Whether an underlying conviction is valid for purposes of enhancing a subsequent criminal charge if an uncounseled misdemeanant is fined and sentenced to suspended jail time in violation of  Alabama v. Shelton, 535 U.S. 654 (2002). Petition, BIO, reply
Tyco Healthcare Group v. Medrad
Whether the Federal Circuit erred by effectively abrogating the express statutory limitations on reissuing defective patents set forth in 35 U.S.C. § 251 and thereby permitting such patents to be reissued as a matter of course. Petition, BIO, reply
Gill v. United States
Whether a claim for emotional distress without physical injury can be brought under the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8101, without first presenting the claim to the Secretary of Labor.
Petition, BIO
Ali v. Achim
Whether an offense need not be an aggravated felony to be classified as a “particularly serious crime” that bars eligibility for withholding of removal. Petition, BIO, reply
Harvey v. Florida
Whether trial counsel violates Strickland v. Washington by failing to remove a juror who says during during voir dire that she cannot be fair and impartial, as opposed to making a strategic decision to accept a biased juror. Petition, BIO, reply
Mejia-Huerta v. United States
Whether Federal Rule of Criminal Procedure 32(h) requires a district court to provide notice of intent to impose a sentence either above or below the sentence recommended by the Sentencing Guidelines, when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties' prehearing submissions. Petition, BIO, reply
CBOCS West v. Humphries
Whether a race retaliation claim is cognizable under 42 U.S.C. § 1981. Petition, BIO, reply
Medtronic Sofamor Danek v. DePuy Spine
Whether the Federal Circuit properly balanced the public notice function of patent claims (the goal of the Supreme Court's “all-elements rule”) with the desire to protect patentees from unscrupulous copyists (the goal of the doctrine of equivalents). Petition, BIO
Hudson v. AEP Texas North Co.
Whether states are preempted from interpreting the meaning of FERC tariffs when disputes arise in retail rate proceedings.  Petition,
BIS (Abilene),
BIS (Tex. Energ. Consumers),
BIO, reply,
Sempra Generation v.
Pub. Util. Comm'n of Calif.,
Morgan Stanley Capital v.
Public Util. District No. 1,
Calpine Energy Services v.
Public Util. District No. 1,
Dynergy Power Marketing v. Public Util. Comm'n of Calif.

Whether, under United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956), and FPC v. Sierra Pacific Power Co., 350 U.S. 348 (1956), the Federal Energy Regulatory Commission may take the 2000-2001 western energy crisis into account in determining the standard to be applied in its review of contracts for the sale of electric power. Petition, petition,
petition, petition,
BIS, reply,
reply, reply, reply,
Cuellar v. United States
Whether the principal federal money laundering statute, 18 U.S.C. § 1956, requires a design to create the appearance of legitimate wealth.  Petition, BIO,
reply, NACDL
Boggan v. Miss. Conf. of the United Methodist Church
Whether the alleged ministerial exception to Title VII of the Civil Rights Act of 1964 is valid under the Religious Freedom Restoration Act. Petition, BIO
Barnes v. United States
Whether the court of appeals correctly concluded that petitioner received timely notice of his promotion delay as required by the Defense Officer Personnel Management Act (DOPMA) and, if not, whether the failure to follow DOPMA's procedures results in automatic appointment, of the affected officer to the next higher rank. Petition, BIO
McNamara v. City of Rittman
Whether a Fifth Amendment takings claimant must first seek compensation in state court under state takings law, including state common law tort remedies, as a necessary step before bringing a federal takings claim in federal court. Petition, BIO,
Vision Church v. Village of Long Grove
Whether, under the Religious Land Use and Institutionalized Persons Act, a land-use regulation must make religious uses or practices “effectively impracticable” to constitute a “substantial burden” on religious exercise, whether a land-use regulation that treats religious uses differently from nonreligious uses violates RLUIPA's “equal terms” requirement, and whether an equal protection challenge to a land-use regulation must be analyzed under “rational basis” scrutiny. Petition, BIO, reply, Baptists
Warner-Lambert v. Kent
Whether federal law preempts state law to the extent it requires fact finders to determine whether the defendant committed fraud on a federal agency that impacted the agency's product approval, where the agency has not found such fraud. Petition, BIO,
reply, Pharma,
Phila. Housing Authority v. Henderson
Whether the Court of Appeals erred in maintaining a 22-year-old consent decree petitioners allege was superseded by subsequent regulations of the Department of Housing and Urban Development.  Petition, BIO, reply
Sasouvong v. Washington
Whether enhancing a sentence on the basis of a prior juvenile conviction violates the Sixth and 14th Amendments.  Petition, BIO, reply
R.J. Reynolds Tobacco v. Engle
Whether the 1969 Federal Cigarette & Labeling And Advertising Act as interpreted by Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), preempts common law claims of fraudulent omission.
BIO, reply,
Catholic Charities of the Diocese of Albany v. Dinallo
Whether States may require churches or church entities to include contraceptives in employee prescription drug plans.  Petition, BIO, reply,
City of Bridgeport v. Russo
Whether the Fourth Amendment requires law enforcement officers to investigate items of evidence identified by a suspect after an arrest. Petition, BIO
Lanard Toys v. General Motors
Whether the existence of alternative product designs is relevant to determining whether a product design feature is "functional" and therefore ineligible for trade dress protection. Petition, BIO, reply,
Prof. Pollack,
Crawford v. Nashville
Whether a witness's providing information during an employer's internal sexual-harassment investigation amounts to protected activity under Section 704(a) of Title VII. Petition, BIONELA, TEA
Avilla v. Thompson
Whether a legal aid corporation is a “state actor” for purposes of 42 U.S.C. §1983 when it deals with a fee dispute with an appointed lawyer, in performance of a traditionally exclusive state function in dealing with such matters. Petition, BIO, reply
Glanton v. Advancepcs
Whether the congressional grant of statutory standing in Sections 502(a)(2)-(3) of ERISA violates Article III. Petition, BIO
Chester v. Texas
Whether the Texas Court of Criminal Appeals' standard for determining mental retardation of a capital defendant violates the Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). Petition, BIO, reply
Gilles v. Blanchard
Whether Vincennes University's solicitation policy, as applied to a traveling preacher who frequently visits college campuses, violates the Free Speech Clause of the First Amendment.
Petition, BIO, reply
Faith Center Church Evangelistic Ministries v. Glover
Whether a county policy stating that public library meeting rooms shall not be used for "religious services" violates the Free Speech Clause of the First Amendment.  Petition, BIO,
reply, Cato, Christian Legal Soc.,
Eagle Forum 
DeLong v. Best Buy
Whether and under what circumstances an employer can be held liable for retaliation in violation of Title VII based upon the bias of subordinate company officials, where the officials did not make the adverse employment decision but allegedly caused that decision through submission of false evidence. Petition, BIO, reply
United States v. Rodriquez
Whether a state drug-trafficking offense qualifies as a predicate offense under the Armed Career Criminal Act. Petition, BIO, reply
NDS Group v. Sogecable
Whether, under RICO, an “enterprise” may consist solely of a corporate defendant (the “person”) and its subsidiaries or agents, whether an “enterprise” comprising a “group of individuals associated in fact” must have a structure separate from the “pattern of racketeering activity,” and whether the statute of limitations does not begin to run until an injured person discovers the identity of the defendant.  Petition, BIO, reply, NAM
Gros Ventre Tribe v. United States
Whether the waiver of sovereign immunity in § 702 of the Administrative Procedure Act is limited by the final agency action requirement of § 704 or the judicial review provisions of § 706, and whether Court precedent addressing Tribal claims for money damages under the Tucker Act limit Tribal claims for equitable relief under Treaties and the common law Indian Trust doctrine? Petition, BIO
Hynix Semiconductor v. Rambus
Whether, under the Federal Arbitration Act, a generic choice-of-law clause in a contract providing for arbitration incorporates state arbitration rules that limit or prevent arbitration. Petition, BIO
Transclean Corp. v. Jiffy Lube
Whether the doctrine of judicial estoppel precludes a party from taking alternative and allegedly inconsistent positions in a proceeding where (a) the positions are on a question of law and (b) the party achieved no judicial success from its asserted earlier position, and whether a court of appeals has jurisdiction or discretionary authority to reverse a judgment to the benefit of a party that filed no appeal or cross-appeal.  Petition, BIO, reply
Brewer v. Board of Trustees of the University of Illinois
Whether an employer be held liable under Title VII when the discriminatory animus of an intermediate supervisor was a factor in the employer's ultimate decision to impose an adverse employment action, even when there is no evidence that the formal decision-maker personally harbored bias against the affected employee. Petition, BIO
Missouri v. March
Whether a chemical laboratory report, which was admitted at trial as a “business record,” is “testimonial” and therefore subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004). Petition
Missouri v. McFadden
Whether, in reviewing a Batson challenge, an appellate court may conclude a hair style is common among members of a particular race, and that a peremptory strike based on a person's “crazy red hair” is thus indicative of racial discrimination? Petition, BIO
Southwire v. Janowick
Whether, when an ERISA plan trustee receives demutualization proceeds, the proceeds are distributed based upon the benefit plan and other related documents or instead are payable to the plan participants in excess of their accrued benefit. Petition, BIOBIO, reply
Carlisle v. Carnival
Whether a cruise line which provides an onboard physician for its passengers as part of the cruise experience is vicariously liable for the medical negligence of that physician committed on the ship's passengers during the cruise. Petition, BIO
Eichenlaub v. Township of Indiana
Whether all substantive Due Process claims involving executive action are subject to the “shocks the conscience” standard, or whether only certain types of executive action are subject to that standard. Petition, BIO, reply
Macy v. Hopkins County Bd. of Education

Whether, when an employer seeks summary judgment on a claim borought under the American Disabilities Act or the Rehabilitation Act, courts should apply the “motivating factor” test, as opposed to the “sole factor" test, in determining if the discharge of employment was due in part to an employee's actionable disability.

Petition, BIO
Bell v. California
Whether attempts to establish a prima facie case of group bias under Batson v. Kentucky, 476 U.S. 79 (1986) requires a reviewing court to engage in comparative juror analysis. Petition, BIO
Rockstead v. City of Crystal Lake
Whether the Court should reconsider the state-litigation requirement of Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), whereby a Fifth Amendment Takings claim is not ripe in federal court until the landowner first seeks and is denied compensation in state court. Petition, BIO, reply,
ITC Limited v. Punchgini
Whether a famous foreign mark without rights through use in the United States, but which is known to the relevant consumer group, is protected as a well-known mark under the Lanham Act. Petition, BIO, reply,
Arave v. Lankford
Whether the Ninth Circuit established an improperly low standard for defendants seeking to establish ineffective assistance of counsel claims based upon counsel's submission of jury instructions. Petition
New York v. Havrish
Whether the Fifth Amendment right against self-incrimination bars prosecution for illegal possession of a handgun surrendered to police following unrelated arrest.
Petition, BIO
Ozmint v. Ard
Whether trial counsel in a capital case was ineffective for failing to interview and later cross-examine the State's gunshot residue expert. Petition
New Mexico v. Romero
Whether defendants who kill a witness who had previously made testimonial statements against them forfeit their constitutional rights of confrontation only if they killed them with the specific intent to prevent them from testifying at trial. Petition, BIO, reply
Barrow v. Greenville Independent School District

Whether a public school teacher passed over for a promotion because her children attended a private religious school can sue the district Superintendent as a “policymaker” within the meaning of Monell v. Dept. of Soc. Serv. of New York, 436 U.S. 658, 694 (1978). 

Petition, BIO, reply
Catawba Indian Tribe v. South Carolina
Whether the Catawba Indian Tribe of South Carolina Land Claims Settlement Act, 25 U.S.C. 941, preempts a state ban on video poker. Petition, BIO, reply
07-102 Randolph v. Raygoza Whether a federal habeas court may disregard a state trial court's factual finding that witnesses lacked credibility, made after evaluating their in-person testimony, because that finding was made implicitly rather than explicitly. Petition, BIO, reply
07-121 Matlaw v. Hug Whether an attorney appeal on her own behalf a District Court ruling which explicitly finds misconduct and harms her professional reputation, even though no monetary sanctions were imposed, and if so, under what circumstances. Petition, BIO

The Justices also will consider the following petition at the Sept. 24 conference following the receipt of a CVSG:

· 06-937, Quanta Computer v. LG Electronics. The Solicitor General recommends granting the petition (see brief here). For more, see here.