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Petitions to watch | Conference of January 6, 2012

At its January 6, 2012 Conference, the Court will consider such issues as dog sniffs and the Fourth Amendment, res judicata and “virtual representation,” and the “single-entity” exemption to the Securities Litigation Uniform Standards 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.


Florida v. Jardines

Docket: 11-564

Issue: (1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers’ conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search.

Certiorari-stage documents


Kansas City Premier Apartments, Inc. v. Missouri Real Estate Commission

Docket: 11-552

Issue: Whether a court considering a First Amendment challenge to a law that restricts protected speech may presume the law’s constitutionality and require the party whose speech is being restricted to prove that the law “clearly and undoubtedly violates the constitution.”

Certiorari-stage documents


Salazar v. Ramah Navajo Chapter

 Docket: 11-551

Issue: Whether the government is required to pay all of the contract support costs incurred by a tribal contractor under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq., where Congress has imposed an express statutory cap on the appropriations available to pay such costs and the Secretary cannot pay all such costs for all tribal contractors without exceeding the statutory cap.

Certiorari-stage documents

  • Opinion below (10th Cir.)
  • Petition for certiorari
  • Brief in opposition (forthcoming)
  • Petitioners’ reply (forthcoming)


Deloitte & Touche LLP v. RGH Liquidating Trust

 Docket: 11-510

Issue: Whether the New York Court of Appeals correctly derived from the “Counting of Certain Class Members” provision of the Securities Litigation Uniform Standards Act (SLUSA) a “single-entity exemption” under which a state-law securities fraud action that indisputably was brought on behalf of more than fifty bondholders and would otherwise be precluded by SLUSA is permissible so long as the named plaintiff entity itself was not established for the “primary” purpose of bringing the lawsuit?

Certiorari-stage documents


NATSO, Inc. v. 3 Girls Enterprises


Issue: (1) Whether a First Amendment objection to a federal district court discovery order requiring the production of private political communications and petitioning strategies by trade associations and their members falls within the Cohen collateral order or Perlman doctrines of appellate jurisdiction, or whether a timely objection to such an order may be raised on appeal only via an extraordinary petition for writ of mandamus; and (2) whether a district court order compelling trade associations and their members to disclose private political communications and petitioning strategies to their political opponents without limitation has so self-evident a chilling effect on First Amendment rights as to trigger First Amendment scrutiny without the need for any additional evidentiary showing.

Certiorari-stage documents


Locke v. Shore

Docket: 11-348

Issue: Whether the licensing of “direct, personalized speech with clients” receives any scrutiny under the First Amendment.

 Certiorari-stage documents


United States Steel Corp. v. Milward


Issue: Whether a district court abuses its discretion in excluding expert testimony that draws an inference of potential causation from inconclusive data, merely because the expert asserts that, in his judgment, the weight of the evidence supports his opinion.

Certiorari-stage documents


Bluman v. Federal Election Commission


Issue: Whether Congress violates the First Amendment by making it a crime for individuals who lawfully reside in the United States, but are neither U.S. citizens nor “permanent residents” under the immigration laws, to make independent expenditures or campaign contributions in connection with any federal, state, or local election; or whether, as the district court held, the ban satisfies strict scrutiny as a “piecemeal” attempt to reduce the “influence” on “how voters will cast their ballots” of aliens whom Congress may suspect of lacking “primary loyalty” to the nation.

Certiorari-stage documents


Hart v. United States

 Docket: 11-265

Issue: (1) Whether 18 U.S.C. § 2422(b), which makes it a crime “to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years to engage in . . . any sexual activity for which any person can be charged with a criminal offense,” requires a jury to come to a unanimous verdict on a single, specific underlying criminal offense for which the defendant could be charged; and (2) whether concurrent conviction under 18 U.S.C. § 2422 and 18 U.S.C. § 2251, which also criminalizes the sexual exploitation of children, violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

Certiorari-stage documents

Ryburn v. Huff

 Docket: 11-208

Issue: (1) Whether Brigham City v. Stuart merged the emergency doctrine and application of exigent circumstances for evaluating warrantless entry; (2) whether, on the facts of this case, involving a police investigation of a potential plan for a school shooting, officers were free to enter a student’s home without a warrant to prevent possible harm to themselves and others; and (4) whether, when the district court and one circuit judge concluded that the police conduct was arguably valid under another constitutional doctrine, the officers can be denied qualified immunity. 

Certiorari-stage documents


Salem v. Holder

 Docket: 11-206

Issue: Whether an alien may satisfy his or her burden under the Immigration and Nationality Act (INA) of demonstrating eligibility to apply for cancellation of removal where the complete record of conviction is, through no fault of the alien, inconclusive on the question whether the alien was convicted of an aggravated felony.

Certiorari-stage documents


Beason v. Bentley

Docket: 11-157

Issue: Can the Alabama courts deny petitioners due process through state interpretation of common law res judicata that defies this Court’s unanimous reversals of similar Alabama decisions in Richards v. Jefferson County, Alabama (1996) and South Central Bell Telephone Co. v. Alabama (1999) and that ignores this Court’s unanimous recent holding denouncing the doctrine of “virtual representation” in Taylor v. Sturgell (2008)?

Certiorari-stage documents


Alvis v. Espinosa

 Docket: 11-84

Disclaimer: Goldstein & Russell, P.C., whose attorneys work for and/or contribute to this blog in various capacities, represents the respondent in this case, which is listed without regard to its likelihood of being granted.

Issue: (1) Whether the Ninth Circuit erred in holding that when an officer makes an unlawful entry, and does so “intentionally or recklessly,” the officer loses authority under the Fourth Amendment to use reasonable force to protect himself or the public during that search; and (2) whether the Ninth Circuit erred in denying qualified immunity for the officers’ use of force based solely on the conclusion that the force may have violated the Fourth Amendment, without performing the second step of the qualified immunity analysis by inquiring whether clearly established law prohibited the force under the circumstances.

Certiorari-stage documents


Arctic Slope Native Association, Ltd. v. Sebelius

Docket 11-83

Issue: Whether a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

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


U.S. Vision Inc. v. Johnson

Docket: 11-35

Issue: Whether, under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), in removing a case to federal court a defendant must prove the amount in controversy to a “legal certainty” just because the complaint pleads that the statutory $5,000,000 threshold cannot be met.

Certiorari-stage documents


Baud v. Carroll

 Docket: 11-27

Issue: Whether 11 U.S.C. § 1325(b)(1)(B) requires a Chapter 13 debtor to propose a plan with a duration at least as long as the applicable commitment period, even if the debtor has no projected disposable income.

 Certiorari-stage documents

  • Opinion below (6th Cir.)
  • Petition for certiorari
  • Amicus brief of National Association of Chapter 13 Trustees (forthcoming)
  • Respondent’s brief in support of certiorari


Cash v. Maxwell

Docket: 10-1548

Issue: (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; and (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Certiorari-stage documents


Johnson v. Holder

 Docket: 10-730

Issue: (1) Whether this Court’s holding in INS v. St. Cyr (2001) concerning the non-retroactivity of Congress’s 1996 repeal of Section 212(c) of the Immigration and Nationality Act is a matter of statutory interpretation that applies equally to all immigrants; and (2) whether Board of Immigration Appeals correctly applied the “statutory counterpart” rule for eligibility for § 212(c) relief.

Certiorari-stage documents

Recommended Citation: Kiera Flynn, Petitions to watch | Conference of January 6, 2012, SCOTUSblog (Dec. 27, 2011, 9:13 AM),