Petitions to Watch | Conference of 6.25.09

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?

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition

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.

• Opinion below (Court of Appeals of Texas, Seventh District)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Texas Civil Rights Project (in support of petitioners)

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?

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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?

• Opinion below (9th Circuit)
• Petition for certiorari(08-1130)
• Petitioner’s supplemental brief (08-1130)
• Brief in opposition (08-1130)
• Brief amicus curiae of Stand True (in support of petitioners)
• Brief amicus curiae of Foundation for Individual Rights in Education (in support of petitioners)
• Brief amicus curiae of Fellowship of Christian Athletes (in support of petitioners)
• Brief amici curiae of Christian Legal Society, et al. (in support of petitioners)
• Conditional cross-petition for certiorari (08-1268)
• Brief in opposition (08-1268)
• Petitioner’s reply (08-1268)

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.

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)
• Brief amicus curiae of Washington Legal Foundation (in support of petitioner)
• Brief amicus curiae of Chamber of Commerce (in support of petitioner)

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.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amici curiae of Individual Rights Foundation (in support of petitioners)
• Brief amicus curiae of American Civil Rights Union (in support of petitioners)
• Brief amicus curiae of The American Legion (in support of petitioners)
• Brief amici curiae of Alliance Defense Fund and Thomas More Law Center  (in support of petitioners)

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.

• Opinion below (DC Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Federal Public Defender for District Court of Oregon (in support of petitioners)
• Brief amicus curiae of American Civil Liberties Union (in support of petitioners)
• Brief amici curiae of Association of the Bar of the City of New York, et al. (in support of petitioners)

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?

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition

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.

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of National Union Fire Insurance Company of Pittsburgh, PA  (in support of petitioner)
• Brief amici curiae of Michigan, et al.(in support of petitioner)

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?

• Denial of habeas corpus (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Brief amici curiae of Bob Barr, et al., Former Prosecutors and Members of the Judiciary(in support of petitioner)

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.

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

[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?

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Washington Legal Foundation et al.
• Brief amicus curiae of Pacific Legal Foundation
• Brief amicus curiae of Source Healthcare Analytics, Inc.
• Brief amicus curiae of Academic Research Scientists
• Brief amicus curiae of Pharmaceutical Research and Manufacturers of America and Biotechnology Industry Organization
• Brief amicus curiae of Council of American Survey Research Organizations, Inc. and Pharmaceutical Marketing Research Group, Inc.
• Brief amicus curiae of New England Legal Foundation et al.
• Brief amicus curiae of Association of National Advertisers, Inc.
• Brief amicus curiae of The Center for Democracy and Technology et al.
• Brief amicus curaie of The Datamonitor Group
• Brief amicus curiae of The Coalition for Healthcare Communication
• Brief amicus curiae of American Business Media et al.
• Brief amicus curiae of Vermont (in support of respondents)

[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.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amici curiae of Various Professors (in support of petitioners)
• Brief amici curiae of Major League Baseball, et al. (in support of petitioners)
• Brief amici curiae of Sony BMG Music Entertainment, et al. (in support of petitioners)
• Brief amici curiae of Broadcast Music, Inc., et al. (in support of petitioners)
• Brief amici curiae of National Music Publishers’ Assocation, Inc. (in support of petitioners)
• Brief amici curiae of Screen Actors Guild, Inc, et al. (in support of petitioners)
• Brief amici curiae of The Picture Archive Council of America, Inc., et al. (in support of petitioners)
• Brief amicus curiae of Copyright Alliance (in support of petitioners)
• Brief amicus curiae of United States (recommending that certiorari be denied)

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.

• Opinion below (Supreme Court of South Dakota)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.

• Opinion below (Supreme Court of Minnesota)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.]

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.]

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner
• Petitioner’s supplemental brief
• Brief amicus curiae of Level 3 Communications (in support of neither party)
• Brief amici curiae of PCIA-The Wireless Infrastructure Association et al. (in support of the petitioner)
• Brief amici curiae of NEXTG Networks of California, Inc and the Das Forum (in support of petitioner)
• Brief amicus curiae of the City of St. Louis (in support of respondents)

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.

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition(for Respondents HRH Crown Prince Sultan Bin Abdulaziz Al-Saud, HRH Prince Naif Bin Abdulaziz Al-Saud, and HRH Prince Salman Bin Abdulaziz Al-Saud)
• Brief in opposition (for Respondent Prince Mohamed al Faisal al Saud)
• Brief in opposition (for Respondent The Kingdom of Saudi Arabia and Saudi High Commission)
• Brief in opposition (for Respondent His Royal Highness Prince Turki Al-Faisal Bin Abdulaziz Al-Saud)
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.]

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Respondent’s supplemental brief
• Brief of the Permanent Bureau of the Hague Conference on Private International Law as amicus curiae (in support of petitioner)
• Brief amicus curiae of the United States (recommending that certiorari be granted)

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.”

• Petition for certiorari
• Brief of respondents NFL
• Petitioner’s supplemental brief
• Brief amicus curiae of NHL in support of respondents
• Brief amicus curiae of NBA in support of respondents
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief
• Brief amicus curiae of the United States (recommending that certiorari be denied)

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.

• Opinion Below (2nd Circuit)
• Petition for certiorari (08-803)
• Petition for certiorari (08-810)
• Petition for certiorari (08-826)
• Brief in opposition(08-803, 08-826)
• Respondent’s supplemental brief (08-803, 08-826)
• Brief in opposition(08-810)
• Brief in opposition of 62 respondents and 7 cross-respondents (08-810)
• Petitioner’s reply (08-810)
• Petitioner’s supplemental brief (08-810)
• Brief amicus curiae of Business Roundtable (in support of petitioners in 08-810)
• Brief amicus curiae of the United States (recommending that certiorari be denied)