At its June 14, 2012 Conference, the Court will consider the petition in American Tradition Partnership, Inc. v. Bullock – the Citizens United sequel seeking review of a Montana state law that restricts the political spending options of corporations.  The Court will also consider such issues as how to determine the credibility of an asylum applicant, equitable tolling for a Medicare payment appeal, and whether the First Amendment permits the imposition of a trust on church property.  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.  The full list of our “Petitions to watch” for the June 7 Conference can be found here.  Any cases that are relisted following the June 7 Conference will be added to this list once that information is available.

Nelson v. Time Warner Cable Inc.

Docket: 11-1236
Issue(s): (1) Whether the statute governing Texas’s transition from municipal-level to state-level cable franchising is subject to strict scrutiny under the Speech and Press Clauses of the First Amendment; and (2) whether a federal court of appeals can hold unconstitutional a state statute that has been amended during the pendency of the appeal, without first allowing the state to make a record in defense of the amended statute.

Certiorari stage documents:

Redevelopment Authority of the County of Montgomery, Pennsylvania v. R & J Holding Co.

Docket: 11-1234
Issue(s): (1) Whether issue preclusion bars a takings claim based on the Fifth Amendment only where the state court expressly decides Fifth Amendment issues or, additionally, where the state court decides the same takings claim under state takings law; and (2) whether, after a federal court’s dismissal of a takings claim under Williamson County Regional Planning Comm’n v. Hamilton Bank and the assertion in state court of an England v. Louisiana State Bd. of Med. Examiners reservation, a federal court -- circumventing San Remo Hotel, L.P. v. City & County of San Francisco and Williamson County -- can rely on that reservation, notwithstanding its invalidity, in refusing to apply claim preclusion to bar the reasserted takings claim.

Certiorari stage documents:

Sebelius v. Auburn Regional Medical Center (Granted )

Docket: 11-1231
Issue(s): Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicaid payment determination made by a fiscal intermediary, 42 U.S.C. § 1395oo(a)(3), is subject to equitable tolling.

Certiorari stage documents:

Hillman v. Maretta (Granted )

Docket: 11-1221
Issue(s): Whether 5 U.S.C. § 8705(a), any other provision of the Federal Employees Group Life Insurance Act of 1954 (FEGLIA), or any regulation promulgated thereunder preempts a state domestic relations equitable remedy which creates a cause of action against the recipient of FEGLI insurance proceeds after they have been distributed.

Certiorari stage documents:

Blue Cross and Blue Shield of Montana, Inc. v. Fossen

Docket: 11-1155
Issue(s): Whether a substantive state-law insurance standard saved from preemption under the insurance saving clause of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1144(b)(2)(A), can be enforced through state-law remedies or instead is enforceable exclusively through ERISA’s enforcement scheme, 29 U.S.C. § 1132.

Certiorari stage documents:

Gauss v. The Protestant Episcopal Church in the United States of America

Docket: 11-1139
Issue(s): Whether the First Amendment, as interpreted by this Court in Jones v. Wolf, requires state civil courts to enforce an alleged trust imposed on local church property by provisions in denominational documents, regardless of whether those provisions would be legally cognizable under generally applicable rules of state property and trust law.

Certiorari stage documents:

Timberridge Presbyterian Church, Inc. v. Presbytery of Greater Atlanta, Inc.

Docket: 11-1101
Issue(s): Whether the “neutral principles” doctrine embodied in the Religion Clauses of the First Amendment permits imposition of a trust on church property when the creation of that trust violates the state’s property and trust laws.

Certiorari stage documents:

Student Doe 1 v. Lower Merion School District

Docket: 11-1135
Issue(s): (1) Whether the United States Court of Appeals for the Third Circuit improperly overturned the United States District Court for the Eastern District of Pennsylvania’s factual finding that race was a factor in Lower Merion School District’s (“LMSD”) student redistricting in light of the fact that LMSD did not appeal the District Court’s adverse ruling, in light of the fact that the District Court’s ruling was not clearly erroneous, and in light of the fact that the Court of Appeals did not conduct the type of expansive review required by this Honorable Court’s decision in Village of Arlington Heights v. Metropolitan Housing Development Corporation; (2) whether LMSD’s reasons for using race in its redistricting decision-making constitute compelling state interests; (3) whether LMSD proved at trial that it used race in its redistricting decision-making to address the achievement gap and racial isolation; (4) whether LMSD proved at trial that its race related redistricting actions were narrowly tailored to serve a compelling state interest; (5) whether LMSD’s race related redistricting actions survive strict scrutiny because they are not limited in duration; (6) whether LMSD preserved the defense that Plan 3R would have inevitably been adopted notwithstanding its race related redistricting actions; (7) whether LMSD proved at trial that Plan 3R would have inevitably been adopted notwithstanding its race related redistricting actions; (8) whether the District Court properly allocated the burden of proof to Students Doe when making its determinations concerning the Lower Merion High School Walk Zone; and (9) whether 42 U.S.C. §1981 and/or Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq., prohibit LMSD’s race related redistricting actions even though the Fourteenth Amendment to the United States Constitution may not.

Certiorari stage documents:

Yang v. Holder

Docket: 11-1119
Issue(s): Whether -- under 8 C.F.R. § 1208.13(a), which provides that “[t]he testimony of [an asylum] applicant, if credible, may be sufficient to sustain the burden of proof without corroboration” -- an immigration judge must explicitly determine whether an asylum applicant’s testimony is credible before denying asylum for failure of the applicant to provide evidence corroborating his or her asylum application.

Certiorari stage documents:

Martel v. Tuite

Docket: 11-1094
Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner without determining that the state court’s “harmless beyond a reasonable doubt” ruling was objectively unreasonable.

Certiorari stage documents:

Lutzer v. Duncan

Docket: 11-1066
Issue(s): Whether the First Amendment permits imposing liability on a church pastor for revoking the ordination of a minister and communicating the reasons for that revocation to those who had initiated the internal disciplinary process: leaders of the church where that minister was then serving.

Certiorari stage documents:

McCall v. United States

Docket: 11-882
Issue(s): (1) Whether petitioner’s convictions must be reversed because “reckless” conduct does not meet the mens rea requirement under the federal criminal securities laws; or (2) whether, alternatively, petitioner was entitled to an instruction defining “recklessness” to mean at least what it means in civil securities fraud cases – i.e., “an intentional and extreme departure from standards of ordinary care that presents a danger of misleading buyers and sellers that is either known to the defendant or so obvious that he must have been aware of it.”

Certiorari stage documents:

Cases involving lawyers from Goldstein & Russell (listed without regard to the likelihood of being granted):

Brown v. Calamos

Note: Goldstein & Russell, P.C. represents the petitioner in this case.
Docket: 11-1173
Issue(s): Does the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f), require dismissing with prejudice a class action complaint that contains no claim for relief “alleging a misrepresentation or omission of a material fact”?

Certiorari stage documents:


The following petitions have been re-listed for the Conference of June 14.  If any other paid petitions are redistributed for this Conference, we will add them below as soon as their redistribution is noted on the docket.

United States v. Trunk

Docket: 11-1115
Issue(s): Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause.

Certiorari stage documents:

Comcast v. Behrend (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.
Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Matthew Bush, Petitions to watch | Conference of June 14, 2012, SCOTUSblog (Jun. 8, 2012, 4:56 PM),