SCOTUSblog » Petitions to Watch http://www.scotusblog.com/wp The Supreme Court of the United States blog Fri, 20 Nov 2009 21:35:15 +0000 http://wordpress.org/?v=2.8.5 en hourly 1 Petitions to Watch | Conference of 11.24.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-24-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-24-09/#comments Thu, 19 Nov 2009 20:05:59 +0000 Erin Miller http://www.scotusblog.com/wp/?p=13033 This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on Tuesday, November 24.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Docket: 08-1392
Title: Massis v. Holder
Issues: (1) Whether the Fourth Circuit erred in concluding that it lacked jurisdiction to entertain a legal challenge to an alien’s deportation on the ground that the alien had not raised that issue before the Board of Immigration Appeals and therefore failed to exhaust administrative remedies, as required by 8 U.S.C. 1252(d)(1). (2) Whether the Fifth Amendment affords an alien a right to relief based on the ineffective assistance of privately retained counsel during immigration proceedings.

Docket: 08-1494
Title: Arguelles-Olivares v. Holder
Issues: (1) Whether a conviction for a felony tax offense other than tax evasion qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(M)(i), where the offense involves fraud or deceit in which the loss to victims exceeds $1o,ooo. (2) Whether a conviction for filing a false tax return qualifies as an aggravated felony under the same provision, when petitioner did not dispute a finding in the pre-sentence investigation report that petitioner owed additional taxes during the year in which the false tax return was filed.

Docket: 09-26
Title: Hertz v. United States
Issue: Whether petitioner’s claim under the Federal Tort Claims Act accrued on the date that her husband was killed in a plane crash, or on the date that petitioner learned that negligence on the part of federal employees might have played a role in the accident.

Docket: 09-106
Title: Pedernera v. Holder
Issue: Whether the Government must comply with its obligation to serve
notice of the final order of removal before the 30-day period to seek review of that order begins to run under 8 U.S.C. § 1252(b)(1).

Docket: 09-273
Title: Thaler v. Haynes
Issues: (1) Whether a new trial is required solely because the trial judge observed the prosecutor’s unrebutted explanation for a juror strike, but did not also observe voir dire firsthand? (2) Was this purported right to a new trial “clearly established” at the time of trial in 1999, as required under the Antiterrorism and Effective Death Penalty Act?; and does this right prevent federal courts from applying the presumption of correctness to the state court finding that the peremptory strike was not racially motivated, as required under the AEDPA?

Docket: 09-297
Title: Ford Motor Co. v. Buell-Wilson
Issue: Whether state law as applied deprives defendants of fair notice if it permits the imposition of punitive damages for conduct that reasonable persons could have concluded was lawful.

Docket: 09-338
Title: Renico v. Lett
Issue: Whether the Michigan Supreme Court erred in denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.

Docket: 09-376
Title: Pitkins v. Hummel (a.k.a. Rosemeyer v. Hummel)
Issue: Did the Third Circuit properly apply the Antiterrorism and Effective Death Penalty Act (AEDPA) when it refused to defer to the state appellate court’s rejection of a habeas petitioner’s claim?

Note: The brief in opposition is coming soon.

Case(s) in which the Solicitor General has recently filed a brief for the United States, as directed by the Court:

Docket: 08-1191
Title: Morrison v. National Australia Bank
Issue: Whether the judicially implied private right of action under Section 10(b) of the Securities and Exchange Act of 1934 should, in the absence of any expression of congressional intent, be extended to permit fraud-on-the-market claims by a class of foreign investors who purchased, on a foreign securities exchange, foreign stock issued by a foreign company.

Case(s) involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 09-102
Title: Virginia v. Rudolph
Issue: Did the Supreme Court of Virginia err when, in conflict with the decisions of other courts, it invalidated a Terry stop by an officer who observed suspicious conduct in an area plagued by crime?

]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-24-09/feed/ 0 Petitions to Watch | Conference of 11.13.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-13-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-13-09/#comments Wed, 11 Nov 2009 16:00:01 +0000 Erin Miller http://www.scotusblog.com/wp/?p=12729 This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on November 13.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Docket: 08-1564
Title: American Civil Liberties Union of Florida v. Miami-Dade County School Board
Issues: Whether, in a First Amendment case, the district court’s findings of historical fact, motivation, intent, pretext and credibility are entitled to deference under Fed. R. Civ. P. 52(a)(6), or, as the court of appeals held, are instead subject to plenary review; whether the courts of appeals are required to undertake “independent review” of a trial court’s factual findings when those findings support a holding in favor of First Amendment claims.

Docket: 09-198
Title: Medela AG v. Kinetic Concepts, Inc.
Issue: Whether a person accused of patent infringement has a right to an independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the “non-obvious subject matter” condition for patentability.

Docket: 09-322
Title: Gregory v. Dillard’s, Inc.
Issue: To set forth a claim under 42 U.S.C. § 1981 in the retail context, must a minority shopper claim and show that the retailer actively and intentionally obstructed his efforts, making the shopper’s purchase impossible, or does the equal “enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship” provision of the statute prohibit racial harassment and race-based surveillance that interferes with the making of the contract but does not actually prevent its formation?

Docket: 09-326
Title: Harjo v. Pro-Football, Inc.
Issue: Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act.

Other petitions from earlier editions of Petitions to Watch were re-listed for the November 13 conference:

  • Wong v. Belmontes (08-1263) – originally Conference 9.29
  • Christian Legal Society v. Martinez (08-1371) – originally Conference 10.19
  • McComb v. Crehan (08-1566) – originally Conference 11.6
  • Noriega v. Pastrana (09-35) – originally Conference 10.9
  • Magwood v. Culliver (09-158) – originally Conference 11.6 [involves lawyers from Akin Gump and Howe & Russell]
  • United States Defense Department v. American Civil Liberties Union (09-160) – originally Conference 10.9
]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-13-09/feed/ 0 Petitions to Watch | Conference of 11.6.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-6-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-6-09/#comments Fri, 06 Nov 2009 03:46:32 +0000 Erin Miller http://www.scotusblog.com/wp/?p=12497 This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow, November 6.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Docket: 08-1500

Title: Federal Express Corp. v. Equal Employment Opportunity Commission

Issue: If Title VII precludes the EEOC from bringing a direct action against an employer once the employee elects to request the right-to-sue notice and files suit on the claims alleged in his charge, would it be inconsistent with Title VII to allow the EEOC to maintain perpetual jurisdiction to investigate the charge?

Docket: 08-1566

Title: Brittany McComb v. Gretchan Crehan

Issues: Does the First Amendment prohibit public high school officials from censoring student-initiated, student-composed religious speech at a high school graduation ceremony?; can an interlocutory appellant unilaterally restart the 30-day clock for filing an interlocutory appeal by re-filing the same motion previously denied by the lower court?

Docket: 09-152

Title: Russell Bruesewitz v. Wyeth, Inc.

Issue: Does Section 22(b)(1) preempt all vaccine design defect claims, whether the vaccine’s side effects were unavoidable or not?

Docket: 09-311

Title: HCA Health Services, Inc. v. Shinn

Issue: Whether the Due Process Clause requires recusal of a judge in a case in which the chair of her ongoing reelection campaign is lead counsel for one of the parties; whether the same clause requires courts to provide parties with particularized notice and an opportunity to present evidence and submit a written response before imposing a severe sanction such as dismissal or direction of a judgment on liability.

Docket: 09-400

Title: Staub v. Proctor Hospital

Issue: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 09-158

Title: Magwood v. Culliver

Issues: When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?; did petitioner’s attorney provide ineffective assistance of counsel by failing to raise an argument at resentencing proceedings that would have made the petitioner constitutionally ineligible for the death penalty?

Other petitions from earlier editions of Petitions to Watch were re-listed for the November 6 conference:

  • Wong v. Belmontes (08-1263) – originally Conference 9.29
  • Christian Legal Society v. Martinez (08-1371) – originally Conference 10.19
  • Manning v. United States (08-1595) – originally Conference 10.30
  • Noriega v. Pastrana (09-35) – originally Conference 10.9
  • Bobby v. Van Hook (09-144) – originally Conference 9.29
  • United States Defense Department v. American Civil Liberties Union (09-160) – originally Conference 10.9
]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-11-6-09/feed/ 0 Petitions to Watch | Conference of 10.30.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-30-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-30-09/#comments Thu, 29 Oct 2009 18:11:26 +0000 Erin Miller http://www.scotusblog.com/wp/?p=12073 This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow, October 30.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Docket: 08-1415; 08-1418
Title: Filebark v. Department of Transportation; Grosdidier v. Chairman, Broadcasting Board of Governors
Issue: Does the Civil Service Reform Act preclude judicial review under statutes other than the Act itself of “federal employee claims” generally, including claims that are neither adverse personnel actions nor otherwise covered by the Act?

For 08-1415:

For 08-1418:

Docket: 08-1457; 09-377
Title: New Process Steel v. National Labor Relations Board; National Labor Relations Board v. Laurel Baye Healthcare
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

For 08-1457:

For 09-377:

Docket: 08-1595
Title: Manning v. United States
Issue: Whether, under 28 U.S.C. § 2676, a judgment on Federal Tort Claims Act claims bars a judgment on Bivens claims when the FTCA claims and the Bivens claims were brought together in the same lawsuit.

Docket: 09-104
Title: Ad Hoc Committee of Kenton County Bondholders v. Delta Air Lines
Issues: Whether the Bankruptcy Code grants bankruptcy courts jurisdiction to permanently release non-debtors from claims of other non-debtors that have no impact on the res of a debtor’s estate?; whether courts may use the judge-made doctrine of “equitable mootness” to deny Article III review of a bankruptcy decision even though a case or controversy remains, solely because any remedy fashioned on appeal would be, in the court’s judgment, inequitable?; whether the Bankruptcy Code grants bankruptcy courts jurisdiction to restructure and modify bond debt owed by a non-debtor to other non-debtors, which has no impact on the res of a chapter 11 debtor’s estate?

Docket: 09-115
Title: U.S. Chamber of Commerce v. Candelaria
Issues: Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens”; whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary; whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens.

Docket: 09-117
Title: Apotex, Inc. v. Sanofi-Synthelabo, Inc.
Issue: Whether, for the purposes of the Patent Act, if an experiment was “obvious to try,” a prima facie case of obviousness is automatically rebutted by a showing that the outcome of the experiment was not entirely predictable.

Docket: 09-223
Title: Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc.
Issue: Does either the Tax Injunction Act, 28 U.S.C. § 1341, or comity principles bar federal court jurisdiction over a case alleging federal equal protection and dormant commerce clause claims when the plaintiffs do not challenge their own tax assessment and the relief sought is directed to specific tax exemptions or exclusions applicable to only four other taxpayers?

Docket: 09-248
Title: Mohawk Industries, Inc. v. Williams
Issue: Whether a district court abuses its discretion by going beyond the allegations in the complaint and examining the factual record to determine whether the named plaintiffs have satisfied the class certification requirements of Federal Rule of Civil Procedure 23.

Docket: 09-254
Title: American Insurance Co. v. AstenJohnson, Inc.
Issue: Under the Seventh Amendment, may a plaintiff that fails to demonstrate damages essential to its only legal claim nevertheless obtain a jury trial by adding a request for declaratory relief?

Cases in which the Solicitor General filed an invitation brief:

Docket: 08-998
Title: Hamilton, Chapter 13 Trustee v. Lanning
Issue: Did the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 eliminate judicial discretion by requiring a debtor whose income exceeds the median to pay to unsecured creditors the net result reported on Official Form 22C?

Note: The respondent declined to participate, so there is no brief in opposition in this case.  For details, see the brief of the United States.

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 08-1438; 09-109
Title: Sossamon v. Texas; Cardinal v. Metrish
Issue: Whether states and state officials may be subject to suit for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc to 2000cc-5?

For 08-1438:

For 09-109:

Docket: 09-3
Title: Daewoo Engineering & Construction Co. v. United States
Issue: When a government contractor submits a claim without sufficiently determining the amount of the government’s liability, is the proper measure of the penalty the amount of the entire claim or instead the narrower amount by which the claim is found to overstate the government’s liability?

Docket: 09-262
Title: USI MidAtlantic, Inc. v. The Graham Company
Issue: Whether, for a cause of action arising under federal law, the default rule is that the “statute of limitations begins to run when the cause of action is complete,” absent contrary indications in the statute, or – alternatively – when that injury is discovered; and whether the Third Circuit erred in holding that, under its default “time of discovery” rule for triggering a statute of limitations, the plaintiff had no duty to investigate the factual basis of its claim until it had specific evidence of each element of its claim.

Other petitions from earlier editions of Petitions to Watch were re-listed for the October 30 conference:

  • Wong v. Belmontes (08-1263)
  • Christian Legal Society v. Martinez (08-1371)
  • Pfizer Inc. v. Abdullahi (09-34)
  • Noriega v. Pastrana (09-35)
  • Bobby v. Van Hook (09-144)
  • United States Defense Department v. American Civil Liberties Union (09-160)
  • United States v. Seale (09-166)
]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-30-09/feed/ 0 Petitions to Watch | Conference of 10.19.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-19-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-19-09/#comments Mon, 19 Oct 2009 00:59:46 +0000 Erin Miller http://www.scotusblog.com/wp/?p=11789 This edition of “Petitions to Watch”  features cases up for consideration at the Justices’ private conference on October 19.  As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to previous editions are available in our SCOTUSwiki archive.

Docket: 08-1371
Title: Christian Legal Society v. Martinez
Issue: Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.

Docket: 08-1553; 08-1554
Title: Kawasaki Kisen Kaisha v. Regal-Beloit Corporation; Union Pacific Railroad Company v. Regal-Beloit Corporation
Issue: Whether the Carmack Amendment to the Interstate Commerce Act of 1887, which governs certain rail and motor transportation by common carriers within the United States, 49 U.S.C. §§ 11706 (rail carriers) & 14706 (motor carriers), applies to the inland rail leg of an intermodal shipment from overseas when the shipment was made under a “through” bill of lading issued by an ocean carrier that extended the Carriage of Goods by Sea Act, 46 U.S.C. § 30701.

For 08-1553:

For 08-1554:

Docket: 1427; 1453
Title: Brockman v. United States; Rollins v. United States
Issue: Whether a district court has authority to order a defendant’s federal sentence to be served consecutively with a state sentence that has not yet been imposed.

For 08-1427:

For 08-1453:

Docket: 09-195
Title: Reust v. Alaska
Issue: Does a state statute that allows a percentage of a civil judgment to be taken for public use violate the Takings Clause of the United States Constitution?  Did the taking of a percentage of Reust’s civil recovery violate the Due Process Clause of the Fourteenth Amendment?

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 08-1428
Title: Burkey v. Marberry
Issue: Whether a prisoner’s challenge to his continued detention is mooted by his release when a judgment in his favor would establish that he was incarcerated beyond the proper expiration of his prison term, thereby supporting a claim for reduction in his term of supervised release. [Note: Akin Gump is counsel to the petitioner.]

Other petitions from earlier editions of Petitions to Watch were re-listed for the October 19 conference:

  • Kiyemba v. Obama (08-1234)
  • Wong v. Belmontes (08-1263)
  • Virginia v. Harris (08-1385)
  • Pfizer Inc. v. Abdullahi (09-34)
  • Noriega v. Pastrana (09-35)
  • Bobby, Warden v. Van Hook (09-144)
  • United States Defense Department v. American Civil Liberties Union (09-160)
  • United States v. Seale (09-166)
]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-19-09/feed/ 0 Petitions to Watch | Conference of 10.9.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-9-09/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-9-09/#comments Wed, 07 Oct 2009 15:51:11 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=11530 This edition of “Petitions to Watch”  features cases up for consideration at the Justices’ private conference on October 9.  As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are available in our archives on SCOTUSwiki.

Docket: 08-1356
Title: Kim v. Holder
Issue: Whether the five-year limitations period of 8 U.S.C. § 1256(a) permits the government to initiate removal proceedings after the five-year period has passed based on the alien’s ineligibility for permanent resident status at the time it was granted, when the final removal order rescinds the alien’s permanent resident status.

Docket: 08-1482
Title: Mincey v. United States
Issue: Does a driver who borrows a rental car with the renter’s, but not the owner’s, permission have a reasonable expectation of privacy in the car? If so, can the rental company unilaterally and immediately extinguish the driver’s reasonable expectation of privacy during a traffic stop by instructing the police not to release the car to the driver?

Docket: 09-35
Title: Noriega v.  Pastrana, Warden
Issue: Whether the Eleventh Circuit  properly interpreted Section 5 of the Military Commissions Act of 2006 and the Geneva Convention in denying the former Panamanian leader’s habeas claim.

Docket: 09-45
Title: Norris, Director Arkansas Department of Correction v. Sasser
Issue: Whether 28 U.S.C. § 2254(e)(2) bars an evidentiary hearing on Sasser’s Atkins claim, when his counsel did not diligently develop available facts supporting the claim during State court proceedings; whether the district court has the authority to expand the record to determine whether Sasser’s Atkins claim warrants an evidentiary hearing, or whether it instead must, based solely on the facts alleged in the petition, hold a hearing; whether the mandatory language of 28 U.S.C. § 2244(b)(4) requires the district court to consider the timeliness of Sasser’s Atkins claim under 28 U.S.C. § 2244(d)(1) before the claim may be adjudicated on the merits.

Docket: 09-160
Title: U.S. Defense Department v. American Civil Liberties Union
Issue: Whether Exemption 7(F) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(F), exempts from mandatory disclosure photographic records concerning allegations of abuse and mistreatment of detainees in United States custody when the government has demonstrated that the disclosure of those photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan.

Docket: 09-161
Title: Miller v. Villegas
Issue: Whether a plaintiff who successfully challenges a government policy on state administrative procedure grounds is entitled to attorney fees under 42 U.S.C. § 1988 without (1) prevailing on a federal claim, achieving any relief, or prevailing on a state claim that shields a federal claim from ever being adjudicated.

Docket: 09-196
Title: Ward v. International Union of Operating Engineers, Local 150
Issue: Whether Congress implied a cause of action for unions to sue their officials under Section 501 of the Labor-Management Reporting and Disclosure Act of 1959, despite limiting the express cause of action under that section to suits by union members.

(Note: An earlier version of this post listed 09-150 but it will not be considered at this conference as the record from the lower court is requested.)

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 09-53
Title: Kelley v. Florida
Issue: Did the Florida Supreme Court err in holding that the prosecution’s duty to disclose under Brady v. Maryland is limited to evidence that would itself be both “favorable” and “material” at trial, without regard to whether that evidence would have led to the disclosure of material exculpatory evidence. [Note: Akin Gump is counsel to the petitioner.]

]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-10-9-09/feed/ 0 Petitions to Watch | Conference of 9.29.09 (Part V) http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-v/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-v/#comments Tue, 29 Sep 2009 00:00:21 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=11247 This is the fifth and final edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  Included in today’s post are cases in which the Solicitor General has filed invitation briefs or letters since the end of last Term. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are available in our archives on SCOTUSwiki. [Note: There are a number of petitions in which the respondent is proceeding in forma pauperis and we don't yet have an electronic copy of the brief in opposition. If you are counsel in any of these cases or otherwise have a copy,  I'd appreciate your emailing it to me.]

Docket: 09-14
Title: Shannon, Director, Illinois Department of Labor et al. v. 520 South Michigan Avenue Associates, Ltd., dba The Congress Plaza Hotel & Convention Center
Issue: Whether the court of appeals incorrectly held that a state statute cannot be a “minimum labor standard” – and therefore cannot survive preemption by the National Labor Relations Act, 29 U.S.C. §151 et seq. – if the law is tailored to account for occupational and regional differences or is “stringent” in its requirements.

Docket: 09-34
Title: Pfizer Inc. v. Abdullahi et al.
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

Docket: 09-39
Title: Dufrene Boats, Inc. v. Nga Trinh
Issue: Whether a person engaged in a maritime trade, who is not a seaman or a longshore worker, is a “seafarer” under Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), which would require application of maritime uniformity and maritime remedies over state interests and state remedies in a maritime wrongful-death case in territorial waters.

Docket: 09-54
Title: Department of the Interior et al. v. Kerr-McGee Oil and Gas Corporation
Issue: Whether Section 304 of the Outer Continental Shelf Deep Water Royalty Relief Act authorizes the Secretary of the Interior to vary the suspension of royalties, so as to collect royalties on oil or gas produced when the price of oil or gas exceeds thresholds specified in the lease, notwithstanding statutorily designated suspension volumes.

Docket: 09-63
Title: McDaniel v. Sechrest
Issue: Did sentencing phase error require the Ninth Circuit Court of Appeals to reverse a sentence of death?

Docket: 09-84
Title: Murphy v. Bryant
Issue: Whether the Connecticut Supreme Court improperly overturned a homicide conviction and ignored Strickland v. Washington’s admonition to assess counsel’s performance with appropriate deference.

Docket: 09-100
Title: Michigan v. Davis
Issue: Must Miranda warnings be given before any person so detained may be asked any questions?  (Such as police asking a group of search warrant detainees “who lives here?”) Should the answer to such a question be excluded because the defendant was not mirandized? Does Missouri v. Seibert require suppression of a mirandized statement that was acquired from un-mirandized questioning?

Docket: 09-110
Title: HCA, Inc. et al., Petitioners v. Aon Corporation et al.
Issue: Does the Due Process Clause or Full Faith and Credit Clause, as interpreted in Phillips Petroleum Co v. Shutts, require an individualized choice of law analysis for each class member’s claim before a single State’s law may be applied to a nationwide class action?

Docket: 09-130
Title: Owens v. Steele, Warden
Issue: When a federal court has found that the state suppressed exculpatory evidence that could mitigate punishment in a domestic homicide case, may the federal court nevertheless find the suppressed evidence not “material” because the defendant suspected or had some knowledge of the deceased’s philandering?

Docket: 09-144
Title: Bobby v. Van Hook
Issue: Under Strickland v. Washington, should defense counsel’s performance be reviewed under professional standards that existed at the time of trial rather than the standards now in existence? Does the threshold for finding prejudice under Strickland vary depending on the number of statutory aggravating circumstances, as opposed to the weight of the aggravating evidence?

Docket: 09-154
Title: Florida Association of Professional Lobbyists, Inc. et al. v. Division of Legislative Information Services of the Florida Office of Legislative Services et al.
Issue: Whether a state law that requires disclosure of the identities of those paying for grassroots lobbying – “opinion articles, issue advertisements, and letter writing campaigns” – facially violates the First and Fourteenth Amendments due to vagueness and overbreadth.Whether a state law that prohibits all gifts for the purpose of lobbying facially violates the First and Fourteenth Amendments due to vagueness and overbreadth.

Docket: 09-166 (certified question, see Lyle’s post here)
Title: United States v. Seale
Issue: What statute of limitations applies to a prosecution under 18 U.S.C § 1201 for a kidnapping offense that occurred in 1964 but was not indicted until 2007?

Cases from OT08:

Docket: 08-974
Title: Lewis et al. v. City of Chicago
Issue: When an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

Docket: 08-1234
Title: Kiyemba et al.  v. Barack H. Obama, President of the United States, et al.
Issue: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush has no power to order the release of prisoners held by the Executive for seven years, when the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

]]> http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-v/feed/ 0 Petitions to Watch | Conference of 9.29.09 (Part IV) http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iv/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iv/#comments Mon, 28 Sep 2009 00:13:24 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=11134 This is the fourth edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29.  We’ll have one final post tomorrow; included in today’s post are the Second Amendment incorporation petitions out of the Second and Seventh Circuits. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are available in our archives on SCOTUSwiki.

Docket: 08-1459
Title: Michigan v. Dorsey
Issue: When all containers, including such effects as purses, are places within the premises where the contraband might be found, is the search of a personal effect (here a purse dropped to the floor by Respondent) within the scope of the warrant?

Docket: 08-1470
Title: Berghuis, Warden v. Thompkins
Issue: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.

Docket: 08-1498 ; 09-89
Title: Holder, Attorney General v. Humanitarian Law Project ; Humanitarian Law Project v. Holder
Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.

08-1498

09-89

Docket: 08-1515
Title: Golden Gate Restaurant Association v. City and County of San Francisco, California, et al.
Issue: Whether ERISA section 514(a), 29 U.S.C. § 1144(a), preempts local laws that mandate ongoing employer contributions for employee health-benefits, or alternative payments to a local government, and extensive recordkeeping and reporting and disclosure requirements.

Docket: 08-1525
Title: Improv West Associates, et al. v. Comedy Club, Inc. et al. (similar to 08-1396/08-1446, on manifest disregard)
Issue: Whether “manifest disregard of the law” is a valid ground for vacatur of an arbitration award under the Federal Arbitration Act and whether the FAA allows for vacatur of an arbitration award based upon an arbitrator’s good faith but, in the view of the reviewing court, “fundamentally incorrect” interpretation of state law.

Docket: 08-1529 ; 08-1547
Title: Migliaccio, et al. v. Castaneda et al. ; Henneford v. Castaneda et al.
Issue: Does 42 U.S.C. § 233(a) make the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions?

Docket: 08-1536
Title: Palazzo v. United States
Issue: Does 21 U.S.C. § 355(i) give the Secretary of Health and Human Services the authority to create criminally enforceable regulations governing physician clinical investigators?

Docket: 08-1555
Title: Samantar v. Bashe Abdi Yousuf, et al.
Issue: . Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue: Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

      Docket: 08-1589
      Title: Dow Chemical Company v. Tanoh, et al.
      Issue: Can removal of mass civil actions under the Class Action Fairness Act (CAFA) be avoided by dividing a single mass action into several, identical cases, each with less than 100 plaintiffs? Does CAFA require a removing party to demonstrate that at least 100 plaintiffs will be parties to an actual trial of the removed action or is removal determined at the time of filing, regardless of how the case is eventually tried?

      Second Amendment cases

      Docket: 08-1497 ; 08-1521
      Title: NRA, et al. v. City of Chicago ; McDonald, et al.  v. City of Chicago
      Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

      Docket: 08-1592
      Title: Maloney v. Rice
      Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States.

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-1461; 08-1463
      Title: Mylan Laboratories, Inc., et al. v. Takeda Chemical Industries, Ltd., et al. ; Alphapharm Pty., Ltd., et al. v. Takeda Chemical Industries, Ltd., et al.
      Issue: Does 35 U.S.C. § 285 permit the imposition of a ten-million-dollar attorney-fee award based substantially on (i) a generic drug maker’s challenge to a patent’s validity on different grounds than those stated in its pre-suit notice to the brand company, and (ii) the trial court’s post-trial determination that the drug maker’s initial (and ultimately unlitigated) theory lacked merit. [Akin Gump represents the petitioner in 08-1461.]

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iv/feed/ 0       Petitions to Watch | Conference of 9.29.09 (Part III) http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iii/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iii/#comments Sat, 26 Sep 2009 14:52:00 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=11030 This is the third edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered on the summer list, we’ll have multiple installations leading up to the “long conference.” As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are also available in our archives on SCOTUSwiki.

      Docket: 08-1385
      Title: Virginia v. Harris
      Issue:When a law enforcement officer receives an anonymous tip that a driver is driving drunk or dangerously, what degree of corroboration is required for the officer to make a valid Terry stop?

      Docket: 08-1389
      Title: Prelesnik, Warden v. Avery
      Issue: Whether the decision of the United States Court of Appeals for the Sixth Circuit, which affirmed the grant of a habeas petition, abrogated the “prejudice” prong of Strickland v. Washington by holding that the issue of an alibi witness’s credibility is “not” for a reviewing court, but rather is a question for the jury and, therefore, the State trial court’s determination that the alibi witnesses lacked credibility was not relevant.

      Docket: 08-1391
      Title: Achobe  v. United States
      Issue: Whether a defendant who is retried for an offense may appeal, after final judgment, the denial of his motion for a judgment of acquittal at the first trial.

      Docket: 08-1393
      Title: May v. Arizona
      Issue: Whether Arizona’s child molestation statutes violate an accused’s Fourteenth Amendment right to due process because the laws “manipulate the prosecutor’s burden of proof by … placing the affirmative defense label on ‘at least some elements’ of traditional crimes,’” as per Apprendi v. New Jersey.

      Docket: 08-1394
      Title: Skilling v. United States
      Issue: Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether § 1346 is unconstitutionally vague. Whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

      Docket: 08-1396
      Title: The Coffee Beanery, Ltd., et al. v. WW, LLC, et al.
      Issue: Is manifest disregard of the law a valid common-law or statutory ground for vacating an arbitration award under the Federal Arbitration Act (9 U.S.C. § 10(a)(4))?  [Note: Prof. David Stras, a blog contributor, is counsel on the petitioner’s brief.]

      Docket: 08-1446 (similar to above–a manifest disregard case, also out of the 6th Cir.)
      Title: Grain, et ux. v. Trinity Health, et al.
      Issue: Does a federal district court have the authority to modify an arbitration award based upon the “manifest disregard of the law” standard when the arbitrators do not apply the particular law for resolving the dispute specified by the parties in their pre-dispute arbitration agreement?

      Docket: 08-1401
      Title: Metrish, Warden v. Newman
      Issue: Whether the Sixth Circuit erred in granting habeas relief and applying the “reasonable speculation” rule, when the Michigan state court had applied the Jackson v. Virginia standard and found there was sufficient evidence.

      Docket: 08-1402
      Title: Berghuis, Warden v. Smith
      Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).

      Docket: 08-1409
      Title: Ford Motor Company v. Delaware Director of Revenue
      Issue: Whether the Delaware Wholesale Merchants’ License Tax, 30 Del. C. §2902, is fairly apportioned under the Commerce Clause, when the State taxes Ford Motor Company based on the fact that its goods were “physically delivered” into the State, and whether this gross receipts tax as a transaction tax on the seller that only one State has the right to tax, rather than as a tax on income that must be apportioned, violates the Commerce Clause by permitting the taxation of sales that occur outside the State’s borders.

      Docket: 08-1425
      Title: Welch v. Moore
      Issue: Did the Sixth Circuit properly interpret Faretta v. California, 422 U.S. 806 (1975) and properly grant a writ of habeas corpus on the ground that the state trial court failed to rule formally on a defendant’s request for self-representation? Did the state courts err in applying Faretta by failing to consider the defendant’s request to proceed pro se?

      Docket: 08-1454
      Title: Asociacion de Empleados del Estado Libre Asociado de Puerto Rico v. Monteagudo
      Issue: Whether an employer is vicariously liable under Title VII for sexual harassment where the employer has implemented a concededly adequate anti-harassment policy with complaint procedure pursuant to this Court’s decisions in Burlington Industries, Inc. v. Ellerth (1998), and Faragher v. City of Boca Raton (1998) and the plaintiff fails to take advantage of the policy because of an unsupported subjective belief that it would be futile or lead to retaliation.

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
      Docket: 08-1403
      Title: Daniels v. Washington
      Issue: Whether the Double Jeopardy Clause prohibits retrial on a charge when a jury instructed in this manner does not return a verdict on it but finds the defendant guilty of a less serious offense. [Akin Gump and Howe & Russell represent the petitioner]

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-iii/feed/ 0       Petitions to Watch | Conference of 9.29.09 (Part II) http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-ii/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-ii/#comments Wed, 23 Sep 2009 15:57:28 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=10932 This is the second edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered on the summer list, we’ll have multiple installations leading up to the “long conference.” As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are also available in our archives on SCOTUSwiki.

      Docket: 08-1291
      Title: Tucker, et al. v. Hardin County, Tennessee, et al.
      Issue: Whether in a case seeking damages for failure to provide a reasonable accommodation under Title II of the Americans with Disabilities Act, the plaintiff must prove “intentional discrimination,” “personal animus” underlying the failure to accommodate, “deliberate indifference to a recognized federal right,” intentional discrimination, or simply :failure to accommodate” ; whether, under Title II, the “effectiveness” of “auxiliary aid” proved by a public entity is a question of law or a question of fact.

      Docket: 08-1301
      Title: Carr v. United States
      Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

      Docket: 08-1314
      Title: Williamson, et al v. Mazda Motor of America, Inc., et al.
      Issue: . Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions? Under Wyeth v. Levine, does a federal motor vehicle safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts impliedly preempt a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles?

      Docket: 08-1322 ; 08-1335 (not vided by the Supreme Court, but consolidated at oral argument by the Eighth Circuit)
      Title: Astrue v. Ratliff ; Astrue v. Wilson
      Issue: Whether an “award of fees and other expenses” under the Equal Access to Justice Act, 28 U.S.C. 2412(d), is payable to the “prevailing party” rather than to the prevailing party’s attorney, and therefore is subject to an offset for a pre-existing debt owed by the prevailing party to the United States.

      08-1322

      08-1335

      Docket: 08-1328
      Title: Greenwell v. Parsley
      Issue: Is the First Amendment implicated when a public employee is fired for announcing his candidacy for elected office (the petitioner’s boss’s job, in this case)?

      Docket: 08-1341
      Title: United States v. Marcus
      Issue: Whether the court of appeals departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether “there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”

      Docket: 08-1350
      Title: Ryan, Director, Arizona Department of Corrections v. Styers
      Issue: Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), when a State’s highest court states it has considered proffered mitigation evidence, must a habeas reviewing court accept that statement, absent clear and convincing evidence to the contrary? Did the Ninth Circuit err in holding that Smith v. Texas (2004) forbids a sentencer from relying on the absence of a causal nexus between an alleged mental condition and the crime committed in deciding how much weight to give the proffered mitigation evidence?

      Docket: 08-1351
      Title: Frazier v. Smith, Commissioner, Florida Department of Education, et al.
      Issue: Whether a state statute requiring parental consent for minor students in public elementary, middle and high schools to be excused from a classroom Pledge of Allegiance recitation is facially unconstitutional?

      Docket: 08-1358
      Title: Holmes v. Louisiana
      Issue: Whether the operation of Louisiana’s capital punishment scheme and the State Supreme Court’s proportionality review violate the Eighth Amendment’s guarantee against arbitrariness in capital sentencing.

      Docket: 08-1379
      Title: Gonzalez v. City of Deerfield Beach, Florida
      Issue: Whether an emergency medical technician or rescue supervisor who does not actually engage in any fire suppression activities can be said to have the “responsibility to engage in fire suppression” within the meaning of the Fair Labor Standards Act, 29 U.S.C. § 203(y)(1).

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-9-29-09-part-ii/feed/ 0       Petitions to Watch | Conference of September 29, 2009 (Part I) http://www.scotusblog.com/wp/petitions-to-watch-conference-of-september-29-2009-part-i/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-september-29-2009-part-i/#comments Mon, 14 Sep 2009 21:24:24 +0000 Kristina Moore http://www.scotusblog.com/wp/?p=10730 The first edition of “Petitions to Watch” for the October 2009 term features cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered, we’ll have multiple installations leading up to the “long conference.” As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.   Links to previous editions are also available in our archives on SCOTUSwiki.

      Docket: 08-1048
      Title: Marquardt v. Sebelius, Secretary of Health and Human Services
      Issue: Whether a federal agency that has issued a final decision denying on the merits an employment discrimination complaint without addressing the timeliness of the administrative complaint may raise a timeliness defense after petitioner brings suit in federal district court.

      Docket: 08-1103
      Title: Michigan v. Williams
      Issue: Do decisions holding that the direction of a verdict of acquittal by a trial judge, taking the case from the jury, based on an erroneous understanding of that which constitutes the elements of the offense, constitutes an acquittal barring retrial, conflict with United States v. Martin Linen Supply, and if not, should that case be reconsidered?

      Docket: 08-1131
      Title: Phon v. Kentucky
      Issue: Whether a juvenile under the age of eighteen at the time of his offense is entitled to a new sentencing hearing in light of Roper v. Simmons, given that his original sentencing was premised on the theory that the death penalty was permissible and as such, the jury was instructed on the mitigating sentence of life without parole? Does the sentence of life imprisonment without the possibility of parole constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?

      Docket: 08-1159
      Title: Texas v. Martinez
      Issue: Whether the subjective intent of an interrogating officer is relevant to the analysis under Missouri v. Seibert when a suspect in custody discusses the case both before and after receiving Miranda warnings; whether statements uttered during the course of a pre-warning polygraph examination are material to the analysis under Missouri v. Seibert when a suspect in custody discusses the case both before and after receiving Miranda warnings; whether a magistrate’s issuance of Miranda warnings between a pre-warning polygraph examination at one location and a post-warning videotaped statement at another location operates as a sufficient break in continuity for the purposes of Missouri v. Seibert.

      Docket: 08-1213 ; 08-1345
      Title: Caruso v. Bazzetta ; Bazzetta v. Caruso
      Issue: Whether a plaintiff in a 42 U.S.C. § 1983 action may retain disputed interim attorney fees awarded during the pendency of the litigation when the plaintiff’s status as a “prevailing party” under 42 U.S.C. § 1988(b) is disputed.

      Docket: 08-1232
      Title: Carlyle Fortran Trust v. NVIDIA Corporation, et al.
      Issue: Whether a trustee has standing to assert claims “on behalf of debenture holders” under Caplin v. Marine Midland Grace Trust Co. Whether the Second Circuit’s “Wagoner rule” should apply in the instant case. Does a landlord creditor have standing to pursue interference claims against a third party for causing the tenant debtor in bankruptcy to breach the lease or claims for lease damages? If a purchase and sale agreement provides that the buyer is purchasing certain assets listed in an exhibit to the agreement, is the buyer’s signature on the agreement alone sufficient to satisfy the statute of frauds (rather than requiring the buyer to sign the exhibit as well)? Does an E-mail from the buyer admitting that the buyer “bought” those assets satisfy the statute of frauds?

      Docket: 08-1242
      Title: Beard v. Bond
      Issue:       On federal habeas corpus review of the state court’s resolution of a claim of ineffective assistance of counsel, did the court of appeals apply the “doubly deferential judicial review” standard required by Knowles v. Mirzayance?

      Docket: 08-1263
      Title: Wong v. Belmontes
      Issue: Does the Sixth Amendment right to effective counsel in the penalty-phase of a capital trial require counsel to present and explain evidence in support of an alternative theory that is inconsistent with his client’s testimony and that would likely open the door to previously excluded evidence that the defendant had personally committed another murder?

      Docket: 08-1283
      Title: Choose Life Illinois, Incorporated, et al. v. White, Illinois Secretary of State
      Issue: Whether a state’s refusal to approve a “Choose Life” specialty license plate is content rather than viewpoint discrimination and violates the First Amendment and whether a specialty license plate program that grants authority to approve or reject new messages on plates is not facially invalid under the First Amendment if it vests that licensing authority in a legislative body.

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-1287
      Title: Family Dollar Stores, Inc. v. Morgan, et al.
      Issue: Can a collective action under the Fair Labor Standards Act be maintained when the employer’s liability turns on a statutory exemption that must be litigated individually based on “all the facts in a particular case” (29 C.F.R. § 541.700(a))? [Howe & Russell represents the respondent.]

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-september-29-2009-part-i/feed/ 0       Petitions to Watch | Conference of 6.25.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-62509/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-62509/#comments Fri, 19 Jun 2009 00:19:56 +0000 Kristina Moore http://www.scotusblog.com/wp/petitions-to-watch-conference-of-62509/ This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 25, the final conference of this Term. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. We’ve also listed the cases considered at this conference in which the Solicitor General was invited to file a brief. Links to previous editions are available under the “Petitions to Watch” tab or in our archives on SCOTUSwiki.

      Docket: 08-1113
      Title: McKnight, et al.  v. General Motors Corporation
      Issue: Does the Americans with Disabilities Act permit an employer to reduce the retirement benefits of disabled workers because they receive federal disability benefits and do the ADA’s anti-discrimination protections apply to disabled former employees?

      Docket: 08-1122
      Title: Clark, et al. v. Jenkins
      Issue: Whether the Court should overrule McDonald v. Smith and find that a statement concerning possible corruption by a public official-made in a petition for redress of grievances to the government-is privileged under the Petition Clause of the First Amendment and whether the First Amendment protects from liability those who relay such a defamatory statement made by others.

      Docket: 08-1123
      Title: ChevronTexaco Corporation, et al. v. Republic of Ecuador, et al.
      Issue: Where a government entity steps into the shoes of a private party in a commercial joint venture and takes substantial and direct benefits under the venture’s joint operating agreement, is it bound by the arbitration provision in the joint operating agreement?

      Docket: 08-1130; 08-1268
      Title: Truth, et al. v. Kent School District, et al.; Kent School District, et al. v. Truth, et al.
      Issue: Does the Equal Access Act preclude a school from applying its non-discrimination policy to exclude religious groups from official recognition and does this restriction trigger strict scrutiny?; Can a plaintiff seek injunctive relief under 42 U.S.C. § 1983 in the absence of a government policy that causes the alleged harm?

      Docket: 08-1172
      Title: Nacchio v. United States
      Issue: Whether the district court correctly instructed the jury on materiality, whether the district court properly excluded the testimony of a witness under Fed. R. Evid. 702, and whether there was sufficient evidence to support the jury’s finding that the defendant knowingly failed to disclose material information on insider trading.

      Docket: 08-1222
      Title: Boy Scouts of America, et al. v. Lori Barnes-Wallace, et al.
      Issue:  Whether plaintiffs, an agnostic couple and their son and a lesbian couple and their son, have Article III standing to bring an Establishment Clause challenge to City leases of recreational facilities to the Boy Scouts.

      Docket: 08-1234
      Title: Kiyemba, et al.  v. Barack H. Obama, President of the United States, et al.
      Issue:  Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

      Docket: 08-1244
      Title: Nixon, Governor of Missouri, et al. v. Phelps-Roper
      Issue: Does a bright-line, First Amendment rule differentiate between laws that address intrusive protests at a home and those that address protests in all other locations, such as Missouri’s statute creating a floating buffer of at least 300 feet of any funeral-or memorial-service-related activity?

      Docket: 08-1254
      Title: Zurich American Insurance Company v. Lexington Coal Company, LLC
      Issue: Whether the Sixth Circuit erred in holding that administrative-expense priority does not extend to all payments due under a contract entered or assumed by the debtor during a bankruptcy case  and in holding that a creditor’s claim against a bankruptcy estate arises only when the creditor’s right to payment accrues under state law.

      Docket: 08-1443
      Title: In re Troy Davis
      Issue: After the capital defendant has exhausted relief from any other court and seven of nine State witnesses have recanted their trial testimony, should the Court grant “original” habeas and transfer the case to a federal District Court to hold an evidentiary hearing?

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-1200
      Title: Jerman, v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, et al.
      Issue: Whether a debt collector’s legal error qualifies for the bona fide error defense under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692.

      [Howe & Russell represents the petitioner]

      Docket: 08-1202
      Title: IMS Health, Inc., et al. v. Ayotte, Attorney General of New Hampshire
      Issue: To what extent does the First Amendment protect the acquisition, analysis, and publication of accurate factual information that is used by third parties for a commercial purpose?

      [Akin Gump represents the petitioners]

      Cases in which the Solicitor General filed an invitation brief:

      Docket: 08-448
      Title: Cable News Network, Inc., et al., v. CSC Holdings, Inc., et al
      Issue: Whether, under the Copyright Act of 1976, Cablevision’s on-demand service infringes the petitioners’ exclusive copyrights by copying, storing, and transmitting its programs without an additional license.

      Docket: 08-576
      Title: Fin-Ag v. Pipestone Livestock Auction Market
      Issue: Whether a commission merchant or other purchaser of farm products is protected by the Food Security Act when the debtor sells secured farm products using a fictitious name that is neither registered nor listed in the UCC/EFS filing with the state.

      Docket: 08-603
      Title: Vos v. Barg
      Issue:  Whether a federal statute, 42 U.S.C. § 1396p(b)(4)(B), preempts the Minnesota Medical Assistance estate recovery statute, which requires recovery of Medicaid benefits from the value of assets in a surviving spouse’s probate estate regardless of which spouse formally owned those assets when the recipient spouse died.

      Docket: 08-626
      Title: Level 3 Communications, LLC v. City of St. Louis
      Issue: Whether local governments’ fees and restrictions on telecommunication carriers’ access to public rights-of-way are preempted by federal law if they do not preclude the plaintiff from providing telecommunications services. [Akin Gump represents the petitioner.]

      Docket: 08-759
      Title: Sprint Telephony PCS, L.P. v. San Diego County
      Issue: Does U.S.C. § 253(a) preempt local or state regulations that govern the construction of individual wireless facilities? [Sprint Telephony PCS presents the same question as Level 3. Akin Gump filed an amicus brief of Level 3 in support of neither party.]

      Docket: 08-640
      Title: Federal Insurance Company, et al., v. Kingdom of Saudi Arabia, et al
      Issue:  Whether under the Foreign Sovereign Immunities Act of 1976 (FSIA) a claim against an “agency or instrumentality” of a foreign state encompasses a claim against an individual foreign official; whether plaintiffs can use the statute’s “non-commercial torts” exception to sue a foreign state when the U.S. government has not designated it a state sponsor of terrorism; and whether U.S. courts have personal jurisdiction over foreign individuals alleged to have provided material support for a terrorist act within the U.S.

      Docket: 08-645
      Title: Abbott v. Abbott
      Issue: Whether a ne exeat clause confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction. [ Howe & Russell represents the petitioner.]

      Docket: 08-661
      Title: American Needle Inc. v. NFL, et al
      Issue: Whether NFLP, the NFL, and the teams functioned as a “single entity” when granting the company an exclusive headwear license and therefore could not violate Section 1 of the Sherman Act, 15 U.S.C. 1, which requires proof of collective action involving “separate entities.”

      Docket: 08-730
      Title: American Bankers Association v. Brown
      Issue: Whether FCRA preempts the California Financial Information Privacy Act, Cal. Fin. Code §§ 4050 et seq. (West Supp. 2009), to the extent the state law restricts the exchange among affiliated financial institutions of information on consumers.

      Docket: 08-803, 08-810, 08-826
      Title: Alfieri v. Conkright; Conkright v. Frommert; Pietrowski v. Conkright
      Issue: Whether the statutory requirements for releases of claims under the Older Workers Benefit Protection Act are applicable to ERISA claims; whether Firestone deference applies to a plan administrator’s interpretation of benefits when issued outside of the administrative claims process; and whether a totality-of-the-circumstances test should be used to determine if an employee has “knowingly and voluntarily” waived pension benefits by signing a boilerplate release.

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-62509/feed/ 0       Petitions to Watch | Conference of 6.18.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61809/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61809/#comments Fri, 12 Jun 2009 17:49:20 +0000 Kristina Moore http://www.scotusblog.com/wp/petitions-to-watch-61809/ This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 18, the penultimate conference of this Term. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  A new blog feature: to access previous editions of Petitions to Watch,  click on the “Petitions to Watch” tab in top navigation bar. Links to previous editions are also available in our archives on SCOTUSwiki.

      Docket: 08-327
      Title: Arizona, et al. v. United States District Court for the District of Arizona, et al.
      Issue: Do district court judges have the power to enact a rule requiring the defendants in pro-se inmate suits to provide super disclosure statements and to investigate the inmates’ allegations even when administrative remedies have not been exhausted?

      Docket: 08-1053
      Title: Sunoco, Inc., et al. v. McDonald, et al.
      Issue: Whether Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act, which pre-empts “limitations periods” “specified in the State statute of limitations or under common law,” includes and pre-empts state statutes of repose.

      Docket: 08-1109
      Title: Porter v. United States
      Issue: Whether 18 U.S.C. §§ 471 & 472, which prohibit making or passing “counterfeit[]” obligations of the United States, require the Government to prove, and the jury to find, that a bill was not only fake, but also similar enough to genuine currency to deceive an honest and unsuspecting person of ordinary observation and care.

      Docket: 08-1149
      Title: Cunningham v. United States
      Issue: Does United States v. Booker, 543 U.S. 220 apply with equal force to sentence reductions under 18 U.S.C. § 3582(c)(2) such that a district court has discretion to reduce the defendant’s term of imprisonment below the Guideline range?

      Docket: 08-1152
      Title: Srivastava v. United States
      Issue: Whether all of the evidence seized pursuant to search warrants should be suppressed under the exclusionary rule, where the supervising officer believed that the warrants imposed no meaningful limits on the items that could be seized and where the executing officers seized a substantial volume of items not covered by the warrants.

      Docket: 08-1165
      Title: Levy v. Sterling Holding Company, LLC, et al.
      Issue:  Whether the Securities and Exchange Commission’s new Rule 16b-3, exempting from disgorgement those short-swing profits realized from an insider’s acquisition of securities from the insider’s own company – is a lawful interpretation of Section 16(b) of the Securities Exchange Act of 1934 and whether it can apply retroactively where it serves to clarify an ambiguity in a prior version of the rule.

      Docket: 08-1169; 08-1207
      Title: Capital One Bank, N.A., fka Capital One Bank, et al., v. Commissioner of Revenue of Massachusetts ; Geoffrey, Inc., v. Commission of Revenue Massachusetts
      Issue: Whether the Supreme Judicial Court of Massachusetts violated the Commerce Clause by permitting a State to tax the income of an out-of-state corporation that does not maintain a physical presence in the taxing State.

      Docket: 08-1194
      Title:  Arkansas Carpenters Health and Welfare Fund, Paper, A.F. of L., et al. v. Bayer AG and Bayer Corp., et al
      Issue:  Are pharmaceutical “reverse payment” agreements – whereby the manufacturer of a brand-name drug (and patent holder) pays a generic manufacturer (and alleged patent infringer) to not launch a generic version of the brand-name drug – per se lawful without regard to the amount of cash paid or the strength of the underlying patent challenge?

      Docket: 08-1223
      Title: Maxwell-Jolly v. Independent Living Center of Southern California, et al.
      Issue: Whether Medicaid recipients and providers may maintain a private cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

      Docket: 08-1224
      Title: United States v. Comstock
      Issue: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

      Cases in which the Solicitor General filed an invitation brief:

      Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson  (08-304) (SG recommended certiorari be granted)

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61809/feed/ 0       Petitions to Watch | Conference of 6.11.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61109/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61109/#comments Fri, 05 Jun 2009 19:36:31 +0000 Kristina Moore http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61109/ This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 11. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  A new blog feature: to access previous editions of Petitions to Watch,  click on the “Petitions to Watch” tab in top navigation bar. Links to previous editions are also available in our archives on SCOTUSwiki.

      Docket: 08-763
      Title:  Mabry v. United States
      Issue: Whether the holding in Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence.

      Docket: 08-998
      Title:  Hamilton v. Lanning
      Issue: Did the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 eliminate judicial discretion by requiring an above-median income debtor to pay to unsecured creditors the net result reported on Official Form 22C?

      Docket: 08-1134
      Title:  United Student Aid Funds, Inc. v. Espinosa
      Issue:  Where a debtor declares to discharge a student loan debt in his Chapter 13 bankruptcy plan, has the debtor satisfied the due process requirements of Mullane v. Cent. Hanover Bank & Trust Co, and does the fact that the debtor failed to initiate an adversary proceeding render the enforceability of the discharge order under 11 U.S.C. 1327(a)inapplicable?

      Docket: 08-1198
      Title:  Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp.
      Issue: Whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-987
      Title:  Campa v. United States
      Issue:  Did the Eleventh Circuit err in holding that petitioners did not establish a right to change venue and does a party’s failure to use all of its peremptory strikes to strike all minority members of the juror per se preclude a prima facie challenge under Batson v. Kentucky ?

      [Akin Gump represents the petitioner]

      ]]>       http://www.scotusblog.com/wp/petitions-to-watch-conference-of-61109/feed/ 0       Petitions to Watch | Conference of 6.4.09 http://www.scotusblog.com/wp/petitions-to-watch-conference-of-6409/ http://www.scotusblog.com/wp/petitions-to-watch-conference-of-6409/#comments Sat, 30 May 2009 19:29:49 +0000 Kristina Moore http://www.scotusblog.com/wp/petitions-to-watch-conference-of-6409/ This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on June 4. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

      Docket: 08-1104
      Title: Tankersley v. United States
      Issue: Whether a Sentencing Guidelines departure should be subject to appellate review that is conducted prior to, and distinctly from, review of the ultimate sentence for reasonableness and whether the Supreme Court’s holding in Williams v. United States–that a sentencing court’s use of an erroneous ground for departure constitutes an incorrect application of the Guidelines–remains valid after United States v. Booker.

      Docket: 08-1107
      Title: Hertz Corporation v. Friend
      Issue: Whether the location of a nationwide corporation’s headquarters can be considered for purposes of determining principal place of business for diversity jurisdiction citizenship under 28 U.S.C. § 1332.

      Docket: 08-1119 and 08-1225
      Title: Milavetz, Gallop, & Milavetz, P.A., et al.  v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al.
      Issue: Whether an attorney who provides bankruptcy assistance to an assisted person in return for valuable consideration, and who does not fall within one of the five exceptions, is a “debt relief agency” for purposes of 11 U.S.C. 526 and whether 11 U.S.C. 528 violates the First Amendment.

      Docket: 08-1120
      Title: American Home Products Corporation v. Ferrari
      Issue: Does the National Childhood Vaccine Injury Act of 1986 preempt a design defect state-law claim against a vaccine manufacturer?

      Docket: 08-1175 and 08-1229
      Title:  Florida v. Powell and Florida v. Rigterink
      Issue: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?

      Docket: 08-1237
      Title: South Carolina v. Council
      Issue: Whether the Supreme Court of South Carolina properly applied Strickland v. Washington when it found ineffectiveness of defense counsel in the capital sentencing phase of trial.

      Docket: 08-1243
      Title: Michigan v. Swafford
      Issue:  Is a document from a state law-enforcement agency notifying the United States Marshal that a federal pretrial detainee is wanted to face pending charges a detainer, and if not, does it become a detainer if forwarded by the United States Marshal to the appropriate federal correctional institution after the pretrial detainee is convicted of the pending federal charges?

      Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

      Docket: 08-846
      Title: Navajo Nation, et al. v. United States Forest Service, et al.
      Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

      [Akin Gump and Howe and Russell represent the petitioners]

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