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Petitions to Watch | Conference of 1.15.10

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on January 15.  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: 08-1596
Title: Rhine v. Deaton
Issues: (1) In a termination proceeding in a state that provides appeals as a matter of right from decisions terminating parental rights, does the State violate the Due Process Clause when it denies an indigent pro se parent facing termination of her parental rights court-appointed counsel without engaging in the requisite due process analysis? (2) Does a statute providing court-appointed counsel to indigent parents facing termination of their parental rights in actions initiated by the State, but not in actions that are privately initiated violate the Equal Protection Clause of the Fourteenth Amendment?

Docket: 09-197
Title: Kimco of Evansville, Inc. v. Indiana
Issue: When the State condemns a strip of land as one part of a capital improvement project, does “just compensation” include all economic injuries owing to the entire project?

Docket: 09-310
Title: Williams v. United States
Issue: Whether a criminal defendant’s claim that his jury trial waiver did not satisfy constitutional requirements, if raised for the first time on appeal, is subject to “plain error” review.

Docket: 09-314
Title: City of Virginia Beach v. Tanner
Issue: Is a noise ordinance which proscribes “unreasonably loud, disturbing and unnecessary noise” – applying a reasonable person standard - impermissibly vague under the Due Process Clause of the United States Constitution?

Docket: 09-325
Title: Aronov v. Napolitano
Issue: Whether an applicant for naturalization who brings suit under 8 U.S.C. 1447(b) and obtains a court-ordered remand so that United States Citizenship and Immigration Services can grant his application is entitled to attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A).

Title: Garcia v. Vilsack
Issue: Whether a statute that was enacted subsequent to the passage of the Administrative Procedure Act and does not expressly displace APA remedies – in particular, the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (“§741”), held to be an “other adequate remedy in a court” as defined in 5 USC §704 – precludes judicial review of unlawful agency action under the APA?

Docket: 09-343
Title: Edison Electric Institute v. Piedmont Environmental Council
Issue: Whether – consistent with the Federal Energy Regulatory Commission’s conclusion through notice-and-comment rule-making – the phrase “withheld approval for more than 1 year” gives FERC the authority to issue permits to construct or modify transmission facilities in National Interest Corridors not only when state commissions fail to act on applications, but also when they deny them.

Docket: 09-379
Title: Allmond v. Akal Security, Inc.
Issue: Under the Americans with Disabilities Act and the Rehabilitation Act, is it lawful for an employer to dismiss a worker with a disability merely because a conceivable situation “may” occur in which that employee would pose a risk to safety, without regard to how unlikely that occurrence might be?

Docket: 09-430
Title: Wahi v. Charleston Area Medical Center
Issues: (1) Whether a hospital can obtain immunity for disciplining a doctor immediately – before notice and a hearing – when the hospital concedes that it did not find or rely upon the possibility of imminent danger; and (2) whether, under the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, an immunity determination may be made by a jury, or whether a jury is instead prohibited from making such a determination.

Docket: 09-438
Title: Providence Hospital v. Moses
Issues: (1) Whether the Emergency Medical Treatment and Labor Act’s requirement that any individual who comes to a hospital’s emergency department with an emergency medical condition be screened and stabilized should be expanded to continue indefinitely, after the individual has been admitted to the hospital; and (2) whether a regulation by the Center for Medicaid and Medicare Services clarifying that EMTALA is inapplicable to hospital inpatients, 42 C.F.R. § 489.24(d)(2)(i), is valid and applies retroactively.

Docket: 09-439
Title: QSI Holdings, Inc. v. Alford
Issues: (1) Whether Section 546(e) prevents a trustee from recovering otherwise avoidable prepetition transfers solely because the funds passed through a financial institution that had no dominion or control over the funds; and (2) whether a payment made in a purely private securities transaction is a “settlement payment” exempt from avoidance.

Docket: 09-447
Title: Hecker v. Deere & Company
Issues: Whether a plan fiduciary’s imprudent selection of investment options with excessive fees is exempt from liability under § 404(c) of ERISA, as long as plan participants can choose from a sufficiently broad range of investment options; and (2) whether petitioners’ allegations that a plan fiduciary selected retail mutual funds with excessive fees failed to state a claim under § 404(a) of ERISA.

Docket: 09-448
Title: Hardt v. Reliance Standard Life Insurance Company
Issues: (1) Whether ERISA § 502(g)(1) provides a district court with discretion to award reasonable attorney’s fees only to a prevailing party; and (2) whether a party is entitled to attorney’s fees pursuant to § 502(g)(1) when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand.

Docket: 09-497
Title: Rent-A-Center, West, Inc. v. Jackson
Issue: Whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision.

Docket: 09-529
Title: Virginia Office for Protection and Advocacy v. Reinhard
Issue: Whether the Eleventh Amendment categorically precludes an independent state agency from bringing an action in federal court against state officials for prospective injunctive relief to remedy a violation of federal law.

Docket: 09-559
Title: John Doe #1 v. Reed
Issues: (1) Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.

Docket: 09-570
Title: Delaware v. Cooke
Issue: (1) Whether a criminal defendant has a fundamental constitutional right to direct his counsel to present a “factual innocence-based defense” irrespective of counsel’s professional judgment; and (2) whether an unresolved disagreement between counsel and defendant regarding pursuit of a “concession-of-guilt and mitigation” defense constitutes a conflict of interest that violates the defendant’s Sixth Amendment right to counsel.

Docket: 09-587
Title: Harrington v. Richter
Issue: Does a defense lawyer violate the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant’s guilt?

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

Docket: 09-294
Title: Unus and Unus v. Kane
Issues: (1) Whether federal agents acted consistently with the Fourth Amendment in their execution of a lawful search warrant at petitioners’ home; and (2) whether the FTCA’s judgment bar – which provides that a judgment in an action under the FTCA “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim,” 28 U.S.C. 2676 – precludes claims against individual federal officials brought together in the same lawsuit?

[Note: Akin Gump represents the petitioners.]

The following petitions were re-listed for the January 15 conference from previous editions of Petitions to Watch: