This edition of "Petitions to Watch" features cases up for consideration at the Justices"™ private conference on Friday, February 19.  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.

UPDATE, Feb. 17: The Court has redistributed nine cases listed below for the conference after this one, on Friday, February 26: 09-389, 09-402, 09-451, 09-461, 09-601, 09-606, 09-625, 09-751, and 09-777.  At the bottom, we’ve also now added cases from previous editions of Petitions to Watch that were redistributed for the conference on the 19th.

Title: Ozuna v. United States
Docket: 09-293
Issue: Whether a litigant moving to re-open a suppression hearing to introduce additional evidence must justify his failure to introduce that evidence at the initial hearing.

Title: Rose Acre Farms, Inc. v. United States
Docket: 09-342
Issues: (1) What constitutes the proper denominator in the takings fraction under Penn Central Transportation Co. v. City of New York (1978); (2) whether the severity of a regulation"™s economic impact on a going business concern should be measured by diminution in value or diminution in return; and (3) whether the purpose of a government regulation is still a relevant consideration under the “character” prong of Penn Central, in
light of this Court"™s repudiation of the “substantially advances a legitimate state interest” test.

Title: Smith v. Jones
Docket: 09-357
Issue: When a state court has reviewed the merits of a petitioner"™s federal claim for plain error, is the decision of a federal court of appeals in a habeas corpus action that there was procedural default of that claim contrary to the decisions of this Court?

Title: Amato v. United States
Docket: 09-375
Issue: Whether it violates a criminal defendant"™s Fifth and Sixth Amendment fair trial rights to exclude, pursuant to Rule 613(b) of the Federal Rules of Evidence, extrinsic evidence of material prior inconsistent statements by the main witness for the prosecution, after the witness has been given the opportunity on cross-examination to explain or deny the statements and denies them.

Title: Liu v. Koninklijke Philips Electronics
Docket: 09-389
Issue: Whether a party contesting the jurisdiction of the district court must first move to vacate or set aside a default judgment pursuant to either Rule 55(c) or Rule 60(b) of the Federal Rules of Civil Procedure in the District Court as a prerequisite to appealing the
default judgment.

Title: McCane v. United States
Docket: 09-402
Issue: Whether the good-faith exception to the exclusionary rule applies to a search that is authorized by precedent at the time of the search but which is subsequently ruled unconstitutional.

Title: New West v. City of Joliet; Davis v. City of Joliet
Docket: 09-435; 09-445
Issue: (1) Whether a local municipality may condemn certain federally subsidized, low-income, multifamily housing, when federal law explicitly requires the property to be maintained for at least thirty years as housing for low-income families; and (2) after Wyeth v. Levine, 129 S. Ct. 1187 (2009) and Cuomo v. Clearing House Association, L.L.C., 129 S. Ct. 2710 (2009), does conflict preemption exist or is preemption now entirely dependent upon express preemption language in a statute or regulation?

Title: Saulsberry v. Myers
Docket: 09-451
Issues: (1) Whether probable cause is required to conduct strip searches that further
the overwhelmingly important interests of jail security and safety; and (2) whether the law governing visual, non-body cavity searches of jail detainees was sufficiently settled to be considered “clearly established” at the time of the search in question.

Title: West v. Bell
Docket: 09-461
Issue: Whether trial counsel"™s failure to investigate and present evidence at sentencing of the severe abuse suffered by the defendant as a child can be dismissed on the basis of unsupported conjecture by the court of appeals that the jury might have concluded that “violence begets violence” and might have “despised [the defendant] and sentenced him to death with greater zeal,” leaving the court able only to “speculate” what effect the evidence actually would have had, and thereby foreclosing a conclusion that the defendant was prejudiced by counsel"™s failure to present the evidence.

Title: Pacific Investment Management Co. v. Hershey
Docket: 09-517
Issue: (1) Whether or to what extent Federal Rule of Procedure 23 permits the certification of a class that includes uninjured plaintiffs who actually benefited from the alleged misconduct; (2) whether or to what extent Rule 23 permits the certification of a class beset by inherent conflicts of interest that affect how the evidence should be shaped; and (3) whether or to what extent a court may certify a class without resolving questions of material fact and finding that plaintiffs have met their burden of proving that each element of Rule 23 is met.

Title: CSX Transportation, Inc. v. Alabama Department of Revenue
Docket: 09-520
Issue: Whether a state"™s exemption of railroad competitors, but not railroads, from a generally applicable sales and use tax is subject to challenge as “another tax that discriminates against a rail carrier” under Section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11501(b)(4).

Title: Haskell County Board of Commissioners v. Green
Docket: 09-531
Issues: (1) Whether including a public monument passively acknowledging the historical significance of the Ten Commandments among other privately donated historical monuments violates the Establishment Clause; (2) whether the endorsement test applied in Establishment Clause cases should be an uninformed and mistaken “reasonable observer” or a well-informed “reasonable observer”; and (3) whether the plaintiff, as an un-coerced “offended observer,” has Article III standing.

Title: CropLife America v. Baykeeper; American Farm Bureau Federation v. Baykeeper
Docket: 09-533; 09-547
Issues: Whether the Clean Water Act unambiguously forecloses a final rule by the EPA ratifying that the use of pesticides in, over, or near waters is not subject to permitting under the CWA"™s National Pollutant Discharge Elimination System and establishing that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act are exempt from the CWA"™s permitting requirements in two specific circumstances.

Title: Connick v. Thompson
Docket: 09-571
Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney"™s office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney"™s office for a single Brady violation undermine prosecutors"™ absolute immunity?

UPDATE on this petition, Feb. 18: The record from the lower court has been requested but not yet delivered (according to the docket), so it will most likely not be acted on for the conference of February 19.

Title: Volvo Construction Equipment North America, Inc. v. Rose
Docket: 09-601
Issue: Whether healthcare and life insurance benefits granted in a collective bargaining agreement to the respondents should be presumed to survive termination of the agreement and become vested for the respondents"™ lifetime.

Title: LFP Publishing Group v. Toffoloni
Docket: 09-625
Issue: Whether First Amendment freedom of the press insulates a publisher from liability for a claim that it violated Georgia"™s common-law posthumous right of publicity by publishing non-obscene nude photographs of a decedent in an article in a national magazine, when the decedent was a public figure and her murder was a national news story of great public interest.

Title: Ortho Biotech Products v. United States ex rel. Duxbury
Docket: 09-654
Issues: (1) Whether a federal court lacks subject-matter jurisdiction over a qui tam suit under the False Claims Act that repeats publicly disclosed allegations from prior litigation, when the FCA relator did not provide the government with information on the suit"™s allegations before the public disclosure; and (2) whether an FCA relator, alleging that the defendant induced a third party to submit false or fraudulent claims, can satisfy Rule 9(b) of the Federal Rules of Civil Procedure without identifying a single false or fraudulent claim, but merely by alleging facts sufficient “to strengthen the inference of fraud beyond possibility.”

Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney"™s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

Title: Local #46 Metallic Lathers Union v. United States
Docket: 09-670
Issue: (1) Whether this Court has jurisdiction to review the denial by a court of appeals of mandamus petitions under the Crime Victims’ Rights Act of 2004, which guarantees federal crime victims an array of substantive and participatory rights; and (2) whether, in conspiracy cases, Congress’s extension of the definition of “victim” in the Victim and Witness Protection Act and the Mandatory Victims’ Restitution Act — to mean “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a conspiracy, any person directly harmed by the defendant"™s criminal conduct in the course of the conspiracy” — extends restitution to losses caused by acts of related conduct for which the defendant was not convicted.

Title: Nurre v. Whitehead
Docket: 09-671
Issue: Does the censorship of a student-selected, instrumental-only performance of “Ave Maria” within a limited public forum at a high school graduation ceremony violate the First Amendment"™s Free Speech Clause?

Title: Butte County, California v. Superior Court of California, Butte County
Docket: 09-675
Issue: Does the Controlled Substances Act, which defines marijuana as contraband per se, preempt a decision by a California state court that California law provides a protected property interest in marijuana which can form the basis for a civil action against law enforcement officers for money damages?

Title: John J. Kane Regional Centers v. Grammer
Docket: 09-696
Issues: (1) Whether, in the absence of an express private right of action, Spending Clause legislation establishing requirements for federal-state cooperative programs can unambiguously confer “rights” enforceable by third-party beneficiaries under 42 U.S.C. § 1983; and (2) if so, whether the Federal Nursing Home Reform Amendment unambiguously confers “rights” enforceable by Medicaid beneficiaries under 42 U.S.C. § 1983.

Title: Snyder v. Phelps
Docket: 09-751
Issue: (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter; (2) whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and (3) whether an individual attending a family member"™s funeral constitutes a “captive audience” who is entitled to state protection from unwanted communication.

Title: City of San Clemente v. Klein
Docket: 09-777
Issue: Is a city"™s interest in preventing litter and blight sufficient to justify a content-neutral “time, place and manner” restriction that prohibits the throwing or depositing litter in or upon vehicles without the consent of an occupant when ample alternative methods of communication admittedly remain open?

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

Title: Javitch, Block & Rathbone, LLP v. Hartman
Docket: 09-606
Issue: (1) Whether various provisions of the Fair Debt Collection Practices Act are unconstitutional as applied to literally true but potentially misleading representations in pleadings under the First Amendment, Fifth Amendment, and the Commerce Clause; and (2) whether evidence that a debt collector acted in good faith and reasonably under the circumstances qualifies for the FDCPA"™s “bona fide error” defense.

[Howe & Russell represents the respondents in this case.]

The Court has re-listed the following cases from previous editions of Petitions to Watch for the February 19 conference:

Posted in Cases in the Pipeline