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Petitions to Watch | Conference of 6.24.10

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ last scheduled private conference of the Term, on Thursday, June 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.

[UPDATE, June 23: This list originally included another petition, Cobell v. Salazar (09-758).  The petitioner has filed a request with the Court to withdraw their petition.]

Title: Fitzgerald v. Thompson
Docket: 09-930
Issues: (1) Whether veterans of the armed forces have Article III standing to challenge the unconstitutional taking and transfer of historic military sites; (2) whether individual military veterans have a continuing right of access to the Seventh Regiment Armory in New York City for military, educational, and recreational purposes under the Fifth and Fourteenth Amendments; (3) whether veterans have a right to offer museum programs and exhibits in the National Historic Landmark armory’s public spaces to educate visitors about the role of citizen-soldiers in America’s wars, and, if so, whether that right was violated by a state’s conversion of those spaces into commercial restaurants; and (4) whether the Disabled American Veterans and other veterans’ associations have a statutory right of free access to the Armory’s “Veterans Room” and other historic regimental rooms that has been deprived by a state’s transfer of them to a private party for commercial use.

Title/Docket: Philip Morris USA v. United States (09-976);  R.J. Reynolds Tobacco v. United States (09-977); United States v. Philip Morris USA (09-978); Altria Group v. United States (09-979); British American Tobacco v. United States (09-980); Tobacco-Free Kids Action Fund v. Philip Morris USA (09-994); Lorillard Tobacco v. United States (09-1012)
Issues (partly overlapping among the petitions):
(1) Whether a group of corporations can constitute an association-in-fact enterprise under RICO;
(2) whether a corporation can be found to have the necessary specific intent to defraud in a RICO case without evidence that any particular individual in the corporation had such specific intent;
(3) whether 18 U.S.C. § 1964(a) of RICO categorically bars a district court from ordering disgorgement of ill-gotten gains as well as other equitable relief, such as smoking cessation and public-education remedies, designed to redress the continuing consequences of RICO violations;
(4) whether the fraud statutes, the First Amendment, and due process permit speech to be deemed fraudulent when (a) the speech addressed important public controversies and potential regulation, rather than being designed to deprive consumers of money or property, (b) there was no evidence or finding that the speech was material to a reasonable consumer, (c) the speech constituted opinions regarding ongoing scientific disputes or statements that were undisputedly true under at least one reasonable interpretation, (d) there was no allegation or finding that any individual associated with the defendants said anything he believed to be false or intended to defraud, and (e) much of the speech is subject to immunity under antitrust laws;
(5) whether federal courts may exercise injunctive jurisdiction under RICO and Article III of the Constitution when there is no statutory “enterprise” and any reasonable likelihood of future violations has been extinguished by, among other things, extensive federal tobacco legislation;
(6) whether a court of appeals is required under the First Amendment to undertake independent appellate review when a district court has found that speech is not constitutionally protected because it is fraudulent; and
(7) whether the traditional presumption against extraterritoriality is relevant to determining whether Congress intends a statute to reach the wholly foreign conduct of a foreign corporation, if such foreign conduct is alleged to have had a direct and substantial effect within the United States.

[See Lyle Denniston’s “primer” on all of the tobacco cases above for an extensive discussion of their questions presented.]

Title: Stolaj v. Holder
Docket: 09-1014
Issues: (1) Whether the government may initiate removal proceedings against a noncitizen after the expiration of the five-year limitations period in 8 U.S.C. § 1256(a) based on a noncitizen’s ineligibility for permanent resident status at the time it was granted; and (2) whether the due process rights of noncitizens are violated in removal proceedings when the government relies on hearsay evidence without making an effort to call the declarant as a witness or allowing the noncitizen to subpoena and cross-examine that declarant.

Title: Henderson v. Shinseki
Docket: 09-1036
Issue: Whether the time limit in 38 U.S.C. § 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is instead jurisdictional and therefore bars application of that doctrine.

Title: Kentucky Baptist Homes for Children, Inc. v. Pedreira; Brown v. Pedreira
Docket: 09-1121; 09-1295
Issues: (1) Whether the “legislative enactment” nexus test–requiring a nexus between a taxpayer’s status and the type of “legislative enactment” he is challenging–applies to state taxpayers as it does to federal taxpayers; and (2) whether Article III confers upon federal courts broader authority to address alleged Establishment Clause violations by state legislatures than to address such violations by Congress.

Title: Morgan v. Plano Independent School District
Docket: 09-1131
Issue: Whether the constitutionality of a public school district’s student speech policy banning the distribution of any written material should be evaluated under the “substantial disruption” standard, which the Supreme Court has generally applied to restrictions on student speech; or whether, because the student speech policy is facially content- and viewpoint-neutral, it should be evaluated under the less exacting “intermediate scrutiny” standard, which the Court has applied to restrictions on expressive conduct that have only an incidental effect on First Amendment freedoms.

Title: Maxwell-Jolly v. California Pharmacists Association
Docket: 09-1158
Issues: (1) Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce 42 U.S.C. § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates; and (2) whether a state law reducing Medicaid reimbursement to providers may be held preempted by Section 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute.

Title: Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc.
Docket: 09-1159
Issues: Whether a federal contractor university’s statutory right under the Bayh-Dole Act in inventions arising from federally funded research can be terminated unilaterally by an individual inventor through a separate agreement purporting to assign the inventor’s rights to a third party.

Title: U.S. Bank National Association ND v. Thomas
Docket: 09-1161
Issues: (1) Whether state-law usury claims against state-chartered, federally insured banks are completely preempted by a provision of the Depository Institutions Deregulation and Monetary Control Act of 1980 now codified at 12 U.S.C. § 1831d; and (2) whether the definition of the term “interest” under 12 U.S.C. § 85 may be limited to periodic percentage interest rates, excluding many types of fees charged in connection with a loan (or other extension of credit).

Title: Norfolk Dredging Company v. Misener Marine Construction, Inc.
Docket: 09-1164
Issues: (1) Whether the Supreme Court should overrule the doctrine that state statutes which “work material prejudice to the characteristic features of the general maritime law [or] interfere with the proper harmony and uniformity of that law in international and interstate relations” are impliedly preempted; and (2) whether a state statute granting attorneys’ fees to a prevailing party is preempted in light of the Supreme Court’s prior concern for substantive state law “rules upon which maritime actors rely in making decisions about primary conduct.”

Title: Arctic Slope Native Association v. Sebelius
Docket: 09-1172
Issue: Whether the Federal Circuit erred in holding that the filing of a class action against the government does not toll the deadline for asserted class members to exhaust their administrative remedies.

Title: Ferring B.V. v. Meijer, Inc.
Docket: 09-1175
Issue: Whether the Second Circuit erred in holding that the Federal Circuit lacks jurisdiction over a Walker Process claim – an antitrust claim alleging enforcement of an invalid patent that was procured through fraud — if plaintiffs include non-patent allegations in the same count.

Title: Little Rock Cardiology Clinic, P.A. v. Baptist Health
Docket: 09-1183
Issues: (1) Whether patients with private health insurance and patients with Medicare and Medicaid benefits must be in a single antitrust market when government benefits are not interchangeable with private insurance from the perspective of hospitals, doctors, or patients; (2) whether the relevant geographic market must be at least as large as the antitrust defendant’s service area when the area of effective competition for the product is a smaller area in which all of the competitors are located; and (3) whether a court may grant a motion to dismiss an antitrust complaint by resolving market allegations and their reasonable inferences against the plaintiffs, when the complaint alleges specific injuries to competition from the alleged acts of monopolization.

Title: Republican National Committee v. Federal Election Commission
Docket: 09-1287
Issue: Whether the prohibition on political parties’ solicitation and expenditure of “nonfederal money” imposed by the Bipartisan Campaign Reform Act of 2002 is unconstitutional as applied to political activities that, when funded by nonfederal money, do not create a risk of actual or apparent quid pro quo corruption of federal officeholders.

Petitions filed by Akin Gump, noted without regard to their worthiness or likelihood of being granted:

Title: City of Warren v. Moldowan
Docket: 09-1149
Issue: What standard governs the civil liability of a police officer on a claim that he violated a criminal defendant’s right to due process by withholding exculpatory evidence; and (2) whether, in an interlocutory appeal, when a court of appeals awards qualified immunity to the only individual municipal defendant, the court has jurisdiction to recognize that the municipality will be entitled to summary judgment on that basis.

Title: Pirate Investor v. Securities and Exchange Commission
Docket: 09-1176
Issues: Whether Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 — which prohibit false statements “in connection with the purchase or sale of any security” — apply to speech by a party that offers no personalized investment advice, does not trade in the relevant stock, and owes no applicable fiduciary duty; and (2) whether such a case may proceed without the protections of the First Amendment, such as independent appellate review of factual findings, a showing of reckless disregard for the truth based on clear and convincing evidence, and a prohibition on sweeping prior restraints on speech.

Cases in which the United States recently filed an amicus brief in response to the Court’s call for the views of the Solicitor General:

Title: Golden Gate Restaurant Association v. San Francisco
Docket: 08-1515
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.

Title: Holy See v. Doe
Docket: 09-01
Issue: Whether the tort exception of the Foreign Sovereign Immunities Act confers jurisdiction when the tortious act itself falls outside the scope of employment but state law extends vicarious liability based upon non-tortious precursor conduct falling within the scope of employment.

Title: Pfizer Inc. v. Abdullahi et al.
Docket: 09-34
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government when 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.; and 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.

Title: United States Chamber of Commerce v. Candelaria
Docket: 09-115
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; and whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of aliens.

Title: Triple-S Management Corporation v. Municipal Revenue Collection Center
Docket: 09-233
Issue: Whether the executive branch, unlike the legislative branch, is free of all due process constraints on retroactive government action, as long as it asserts that its earlier interpretation of law was ”wrong.”

Title: Thompson v. North American Stainless
Docket: 09-291
Issue: Whether a third party is afforded protection under the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e-3(a), based solely upon his or her association with an employee who has engaged in protected activity.

Title: Providence Hospital v. Moses
Docket: 09-438
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 must 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.

Title: Janus Capital Group, Inc. v. First Derivative Traders
Docket: 09-525
Issues: (1) Whether a service provider can be held primarily liable in a private securities-fraud action for “help[ing]” or “participating in” another company’s misstatements; and (2) whether a service provider can be held primarily liable in a private securities-fraud action for statements that were not directly and contemporaneously attributed to the service provider.

Title: Carmichael v. Kellogg, Brown & Root Service, Inc.
Docket: 09-683
Issue: Whether a private military contractor in Iraq should be afforded de facto immunity under the political question doctrine for severely injuring a United States soldier in an automobile wreck during a routine convoy.

Title: Amara v. CIGNA Corp.; CIGNA Corp. v. Amara
Docket: 09-784; 09-804
Issues: (1) Whether a district court, after finding violations of the “advance notice of reduction requirement” in Section 204(h) of the Employee Retirement Income Security Act (ERISA), lacks the authority to require the prior benefit provisions to be reinstated; and (2) whether a district court, after finding that participants were promised “comparable” or “larger” future retirement benefits in a summary of material modification errs in concluding that it lacks the authority to require at least “comparable” future benefits to be provided.

If any other cases from previous editions of Petitions to Watch are redistributed for this conference between now and Thursday, we will list them below.