Petitions to watch | Conference of September 24, 2012
On Monday, the Justices will formally be back at work and will hold a Conference at which they will select cases from the summer lists for review during the October 2012 Term. Our previous lists of “Petitions to Watch” for this Conference can be found here and here. The petitions distributed for the Court’s review at this Conference include such issues as the constitutionality of the federal Defense of Marriage Act, the patent exhaustion doctrine applied to patented seeds and self-replicating technologies, California’s definition of marriage and the Equal Protection Clause, reimbursement under the Medicare Secondary Payer Act, and class action lawsuits under 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.
Bowman v. Monsanto Co. (Granted )
Docket: 11-796
Issue(s): Whether the Federal Circuit erred by (1) refusing to find patent exhaustion – a doctrine which eliminates the right to control or prohibit the use of an invention after an authorized sale – in patented seeds that were sold for planting; and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.
Certiorari stage documents:
CVSG Information:
- Invited: April 2, 2012
- Filed: August 24, 2012 (Deny)
Hadden v. United States
Docket: 11-1197
Issue(s): Whether the government is entitled to full reimbursement under the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b), when a beneficiary compromises a tort or other claim and recovers a reduced amount, as the court of appeals held here, or whether the government, like its beneficiary, is entitled to only a proportionate recovery, as the Eleventh Circuit has held.
Certiorari stage documents:
- Opinion below (6th Cir.)
- Petition for certiorari
- Brief in opposition
- Amicus brief of Workers' Compensation Section of the State Bar of Michigan
- Amicus brief of Property Casualty Insurers Association of America et al.
- Amicus brief of DRI - The Voice of the Defense Bar
- Amicus brief of Retail Litigation Center, Inc.
- Reply of petitioner
Rubashkin v. United States
Docket: 11-1203
Issue(s): (1) Whether Federal Rule of Criminal Procedure 33 requires a criminal defendant with newly discovered evidence that goes not to guilt or innocence but to the fundamental fairness of his criminal trial – here, that the trial judge should have been recused under 28 U.S.C. § 455(a) – to show nonetheless that the new evidence would probably lead to his acquittal; and (2) whether a sentence is unreasonable when a district court fails to consider and explain on the record, as required by this Court’s precedents, its basis for rejecting a defendant’s nonfrivolous argument for a below-Guidelines sentence – resulting in, here, a twenty-seven-year sentence for a first-time, nonviolent offender that is significantly greater than
sentences for similarly situated individuals.
Certiorari stage documents:
- Opinion below (8th Cir.)
- Petition for certiorari
- Brief in opposition
- Amicus brief of Justice Fellowship et al.
- Amicus brief of Criminal Justice and Legal Ethics Professors (forthcoming)
- Amicus brief of Eighty-Six Former Attorneys General et al.
- Amicus brief of National Association of Criminal Defense Lawyers et al.
- Amicus brief of Washington Legal Foundation and Criminal Law Scholars
- Amicus brief of Association of Professional Responsibility Lawyers (APRL)
- Reply of petitioner
Elizondo v. City of Garland
Docket: 11-1375
Issue(s): (1) Whether, when an officer precipitates a violent confrontation ending in his use of force, his own conduct making that force necessary should be considered among the totality of circumstances determining whether the force was constitutionally excessive; and (2) whether an individual’s obvious mental illness reduces the government’s justification for using force against him during an encounter with police.
Certiorari stage documents:
Wyoming v. Dept. of Agriculture
Docket: 11-1378
Issue(s): (1) Whether, under the Wilderness Act of 1964, which provides that only Congress may designate wilderness areas, the United States Forest Service usurped Congress’s authority to designate wilderness areas; (2) whether the Forest Service exceeded its authority by promulgating the Roadless Rule without following the forest planning process set forth in the National Forest Management Act; and (3) whether the Forest Service violated the National Environmental Policy Act by predetermining the outcome of the environmental analysis, not conducting any site-specific analysis, and not preparing a supplemental environmental analysis.
Certiorari stage documents:
- Opinion below (10th Cir.)
- Petition for certiorari
- Brief in respondents Conservation Respondents in opposition
- Brief of respondents Department of Agriculture et al. in opposition
- Amicus brief of Mountain States Legal Foundation et al.
- Amicus brief of Associations Representing the Interests of the Mining Industry et al. (forthcoming)
- Amicus brief of Blue Ribbon Coalition et al.
- Amicus brief of American Petroleum Institute (forthcoming)
- Amicus brief of Wyoming County Commissioners Association et al.
- Amicus brief of Coalition of Local Governments
- Amicus brief of Western Energy Alliance
- Amicus brief of Utah et al.
- Amicus brief of Safari Club International (forthcoming)
Colorado Mining Association v. Dept. of Agriculture
Docket: 11-1384
Issue(s): Whether the Tenth Circuit erred in failing to determine that the Secretary of Agriculture’s designation of 58.5 million acres of land as Roadless was a de facto wilderness designation, which impermissibly intrudes into Congress’s exclusive authority under the Wilderness Act to permanently designate National Forest System lands as wilderness.
Certiorari stage documents:
- Opinion below (10th Cir.)
- Petition for certiorari
- Brief in respondents Conservation Respondents in opposition
- Brief of respondents Department of Agriculture et al. in opposition
- Amicus brief of Mountain States Legal Foundation et al.
- Amicus brief of Associations Representing the Interests of the Mining Industry et al. (forthcoming)
- Amicus brief of Blue Ribbon Coalition et al. (forthcoming)
- Amicus brief of American Petroleum Institute (forthcoming)
- Amicus brief of Wyoming County Commissioners Association et al.
- Amicus brief of Coalition of Local Governments
- Reply of petitioner
Farmers Insurance Company of Washington v. Moratti
Docket: 11-1474
Issue(s): Whether Washington state courts' presumptions – that an insurer’s bad faith results in harm to a policyholder, and that damages are measured by the full amount of a covenant judgment – violate the Due Process Clause of the Fourteenth Amendment.
Certiorari stage documents:
- Opinion below (Wash. Ct. App.)
- Petition for certiorari
- Brief in opposition
- Amicus brief of Federation of Defense and Corporate Counsel
- Motion for leave to file amicus brief and amicus brief of DRI - The Voice of the Defense Bar
- Opposition to motion of DRI-Voice of the Defense Bar for leave to file brief amicus curiae
- Reply of petitioner
KeyCorp v. Sollitt
Docket: 11-1479
Issue(s): Whether a case under the Edge Act, 12 U.S.C. § 632, “arises” out of international or foreign banking transactions
when the significant legal issues in the case are directly related to such transactions.
Certiorari stage documents:
Carter v. Louisiana
Docket: 11-1484
Issue(s): Whether the Court should reexamine its “death qualification” framework articulated in Witherspoon v. Illinois and Wainwright v. Witt because the Court announced that framework decades ago without any consideration of, or foundation in, the Framers' intent in protecting a defendant’s right to an “impartial jury” in the Sixth Amendment.
Certiorari stage documents:
Lawson v. FMR LLC (Granted )
Docket: 12-3
Issue(s): Whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.
Certiorari stage documents:
Arzoumanian v. Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft AG
Docket: 12-9
Issue(s): Whether a state law concerning traditional state responsibilities, such as extending the statute of limitations and providing forum access for insurance claims, can be invalidated under the foreign affairs doctrine in the absence of a conflict with federal policy or an indication of federal intent to preempt the field.
Certiorari stage documents:
Brewer v. Diaz
Docket: 12-23
Issue(s): Whether the Ninth Circuit Court of Appeals ignored this Court’s precedent and erred in holding that Arizona Revised Statutes (A.R.S.) Section 38-651(O) (Section O) violates the Equal Protection Clause by limiting healthcare benefits to state employees’ spouses and dependents – and thus not extending such benefits to state employees’ domestic partners – given that a) Section O is facially neutral and there is no evidence that the Legislature intended to discriminate based on sexual
orientation; b) Section O furthers the State’s interests
in promoting marriage while also eliminating the additional expense and administrative burdens involved in providing healthcare benefits to state employees’ domestic partners; and c) the court’s reason for finding that Section O discriminates against gay and lesbian state employees was that Arizona prohibits same-sex marriage.
Certiorari stage documents:
City of Des Moines v. Kragnes
Docket: 12-37
Issue(s): Whether a court in a class action, consistent with the Due Process Clause, can certify a plaintiff class consisting of all payers of a municipal franchise fee, and refuse to allow class members to opt out, when the lawsuit seeks a class-wide refund that will necessarily have a disparate and negative impact on those class members who pay municipal property taxes.
Certiorari stage documents:
Windsor v. United States
Docket: 12-63
Issue(s): Whether Section 3 of the Defense of Marriage Act, 1
U.S.C. § 7, which defines the term “marriage” for all
purposes under federal law as “only a legal union
between one man and one woman as husband and
wife,” deprives same-sex couples who are lawfully
married under the laws of their states (such as New
York) of the equal protection of the laws, as
guaranteed by the Fifth Amendment to the
Constitution of the United States.
Certiorari stage documents:
- Opinion below (2d Cir.)
- Petition for certiorari
- Brief of respondent Bipartisan Legal Advisory Group of the United States House of Representatives in opposition
- Amicus brief of New York et al.
- Brief of respondent United States
- Reply of petitioner
- Supplemental brief of respondent Bipartisan Legal Advisory Group of the United States House of Representatives
Chadbourne & Parke LLP v. Troice (Granted )
Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-79
Issue(s): (1) Whether the Securities Litigation Uniform Standards Act (SLUSA) precludes a state-law class action alleging a scheme of fraud that involves misrepresentations about transactions in SLUSA-covered securities; and (2) whether SLUSA precludes class actions asserting that defendants aided and abetted SLUSA-covered securities fraud when the defendants themselves did not make misrepresentations about the purchase or sale of SLUSA-covered securities.
Certiorari stage documents:
Willis of Colorado Inc. v. Troice (Granted )
Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-86
Issue(s): Whether a covered state law class action complaint that unquestionably alleges “a” misrepresentation “in connection with” the purchase or sale of a security covered by the Securities Litigation Uniform Standards Act nonetheless can escape the application of SLUSA by including other allegations that are farther removed from a covered securities transaction.
Certiorari stage documents:
- Opinion below (5th Cir.)
- Petition for certiorari
- Brief of respondents James Roland et al. and Leah Farr et al. in opposition
- Brief of respondents Samuel Troice et al. in opposition
- Motion for leave to file amicus brief and amicus brief of Brazeale, Sachse & Wilson, LLP
- Motion for leave to file amicus brief and amicus brief of DRI - The Voice of the Defense Bar
- Reply of petitioner
Proskauer Rose LLP v. Troice (Granted )
Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondents in this case.
Docket: 12-88
Issue(s): (1) Whether the Securities Litigation Uniform
Standards Act of 1998 (“SLUSA”), 15 U.S.C.
§§ 77p(b), 78bb(f)(1), prohibits private class actions
based on state law only where the alleged purchase
or sale of a covered security is “more than
tangentially related” to the “heart, crux or
gravamen” of the alleged fraud; and (2) whether the SLUSA precludes a class action in which
the defendant is sued for aiding and abetting fraud,
but a non-party, rather than the defendant, made
the only alleged misrepresentation in connection
with a covered securities transaction.
Certiorari stage documents:
American Express Travel Related Services, Inc. v. Sidamon-Eristoff
Docket: 12-105
Issue(s): (1) Whether a state violates due process by using its abandoned-property laws to confiscate the proceeds of private enterprise under an arbitrary and unreasonable presumption of “abandonment” that is shown to be false and serves none of the traditional purposes of escheat; (2) whether retroactive application of a shortened abandonment period, requiring immediate transfer to the state of the proceeds of transactions entered into years ago, effects an unconstitutional taking.
Certiorari stage documents:
Merrill Lynch v. McReynolds
Docket: 12-113
Issue(s): (1) Whether the Seventh Circuit’s certification of a disparate impact injunction class conflicts with this Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which rejected certification of a nationwide class that, like this one, asserted disparate impact claims based on employment policies requiring the exercise of managerial discretion; and (2) whether the Seventh Circuit erred in holding, in conflict with other circuits, that Federal Rule of Civil Procedure Rule 23(c)(4) permits class certification of a discrete sub-issue when the claim as a whole does not satisfy Rule 23(b) and hundreds of individual trials would be needed to determine liability.
Certiorari stage documents:
- Opinion below (7th Cir.)
- Petition for certiorari
- Brief in opposition
- Amicus brief of Product Advisory Council, Inc. et al.
- Amicus brief of Equal Employment Advisory Council
- Amicus brief of DRI - The Voice of the Defense Bar
- Amicus brief of Pacific Legal Foundation
- Reply of petitioner
- Supplemental brief of respondents
- Supplemental brief of petitioner
Hollingsworth v. Perry (Granted )
Note: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.
Docket: 12-144
Issue(s): (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the
Constitution in this case.
Certiorari stage documents:
- Opinion below (9th Cir.)
- Petition for certiorari
- Brief of respondents Kristin M. Perry et al. in opposition
- Brief of respondent City and County of San Francisco in opposition
- Amicus brief of Judge Georg Ress and The Marriage Law Foundation
- Amicus brief of William N. Eskridge, Jr. et al.
- Amicus brief of Center for Constitutional Jurisprudence
- Amicus brief of American Civil Rights Union (forthcoming)
- Amicus brief of Foundation for Moral Law
- Amicus brief of Indiana et al.
- Amicus brief of Eagle Forum Education & Legal Defense Fund, Inc.
- Amicus brief of National Association of Evangelicals et al.
- Amicus brief of Public Advocate of the United States et al.
- Amicus brief of Judicial Watch, Inc. et al
- Amicus brief of Declaration Alliance & United States Justice Foundation
- Reply of petitioner
Recommended Citation: Ben Cheng, Petitions to watch | Conference of September 24, 2012, SCOTUSblog (Sep. 22, 2012, 11:51 PM), https://www.scotusblog.com/2012/09/petitions-to-watch-conference-of-september-24-2012-3/