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Petitions to Watch | Conference of 10.30.09

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on Oct 29, 2009 at 2:11 pm
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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)

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