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Petitions to watch | Conference of October 28, 2011

On October 28, the Court will consider such issues as the constitutionality of highway crosses, Miranda’s “in custody” requirement, and the availability of disparate impact claims under the Fair Housing Act.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.


Gila River Indian Community v. Lyon

Docket: 11-80

Issue: (1) Whether, under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States’s participation in the litigation; and (2) whether, in light of this Court’s recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), litigation compromising the United States’ title in land can proceed in the United States’ absence as long as an Indian tribe is a party to the litigation.

Certiorari-stage documents


Hardy v. Cross

Docket: 11-74

Issue: Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Certiorari-stage documents


Wetzel v. Lambert

Docket: 11-38

Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?

Certiorari-stage documents


Bobby v. Dixon

Docket: 10-1540

Issue: (1) Whether the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) when it abandoned the “in custody” requirement of Miranda v. Arizona and Edwards v. Arizona; (2) whether the interviewer’s state of mind has any bearing on whether a suspect’s statement is voluntary under the established law of Oregon v. Elstad; and (3) whether the Sixth Circuit exceeded its authority under AEDPA when it condemned the use of the “prisoner’s dilemma” where the police indicate that favorable treatment will go to the first suspect who cooperates as an unconstitutionally coercive interrogation tactic.

Certiorari-stage documents


Villanueva v. United States

Docket: 10-1535

Issue: Whether evidence that is “inextricably intertwined” with the charged crime but does not directly prove that crime may be admitted without the limited-admissibility instruction otherwise required by Federal Rule of Evidence 404(b).

Certiorari-stage documents


Davenport v. American Atheists, Inc.

Docket: 10-1297

Issue: (1) What is the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause; (2) whether this Court should set aside the endorsement test in favor of the coercion test; and (3) whether a memorial cross placed on state land by a private organization to commemorate fallen state troopers is an unconstitutional establishment of religion.

Certiorari-stage documents


Utah Highway Patrol Ass’n v. American Atheists

Linked with:

Docket: 10-1276

Issue: (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech?

Certiorari-stage documents


Cavazos v. Smith

Docket: 10-1115

Issue: Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Certiorari-stage documents


Magner v. Gallagher

Docket: 10-1032

Issue: (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and, if so (2) what test should be used to analyze them.

Certiorari-stage documents


Barr Laboratories, Inc. v. Cancer Research Technology Limited

Docket: 11-131
Issue: (1) Whether the defense of prosecution laches requires an accused infringer to prove intervening rights, where the patent applicants unreasonably delayed prosecution of their application, thereby extending the term of their patent; and (2) whether, in analyzing whether a patent is unenforceable due to inequitable conduct, the finder of fact may rely on the same piece of evidence as proof of both materiality and intent.

Certiorari-stage documents

  • Opinion below (Fed. Cir.)
  • Petition for certiorari (forthcoming)
  • Brief in opposition (forthcoming)
  • Petitioners’ reply (forthcoming)
  • Amicus brief of Sun Pharmaceutical Industries LTD. (forthcoming)


Stewart & Jasper Orchards v. Salazar

Docket: 10-1551
Issue: Did the Ninth Circuit err in holding that, under this Court’s decision in Gonzales v. Raich, the Endangered Species Act is a comprehensive regulatory scheme that “bears a substantial relation to commerce,” even though the Endangered Species Act, unlike the Controlled Substances Act in Raich, is not a market regulatory scheme that governs quintessentially economic activities?

Certiorari-stage documents

  • Opinion below (9th Cir.)
  • Petition for certiorari 
  • Brief in opposition
  • Petitioners’ reply (forthcoming)
  • Amicus brief of National Water Resources Association (forthcoming)
  • Amicus brief of Center for Constitutional Jurisprudence and the Cato Institute (forthcoming)
  • Amicus brief of Mountain States Legal Foundation (forthcoming)
  • Amicus brief of National Federation of Independent Business Small Business Legal Center (forthcoming)


Garden Grove Unified School District v. C.B.

Docket: 11-174
Issue: Does the Individuals with Disabilities in Education Act (“IDEA”) permit full public reimbursement to parents who withdraw their disabled children from school entirely, and who instead provide only “related services,” intended to supplement a school placement that they fail to provide?

Certiorari-stage documents

  • Opinion below (9th Cir.)
  • Petition for certiorari (forthcoming)
  • Brief in opposition (forthcoming)
  • Amicus brief of Northern California Relief (forthcoming)


Downing/Salt Pond Partners, L.P. v. Rhode Island

 Docket: 11-231
Issue: Does the ripeness doctrine of Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), require a property owner to litigate in state court to show a taking of property is “without just compensation,” and thus, ripe for federal review, if it is already clear that the agency causing the taking has no plan or intent to compensate, and where requiring an additional step of state court litigation: (1) divests federal courts of all jurisdiction over ripe federal takings claims, (2) bars federal jurisdiction over traditional federal due process and equal protection property rights violations, (3) often forecloses all judicial review (state and federal) of takings claims because defendants can remove state-court takings claims to a federal forum that cannot hear them, and (4) is unnecessary for ripeness in this situation, and was criticized by four Justices in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 350-52 (2005)?

Certiorari-stage documents

  • Opinion below (1st Cir.)
  • Petition for certiorari (forthcoming)
  • Brief in opposition (forthcoming)
  • Petitioner’s reply (forthcoming)
  • Amicus brief of New England Legal Foundation (forthcoming)

Recommended Citation: Kiera Flynn, Petitions to watch | Conference of October 28, 2011, SCOTUSblog (Oct. 28, 2011, 10:38 PM),