Petitions to Watch | 4.17.09

This edition of Petitions to Watch features cases up for consideration at the Justices™ private conference on April 17. As always, the list contains the petitions on the Court™s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.

Docket: 08-674
Title:  NRG Power Marketing, LLC, et al. v. Maine Public Utilities Commission, et al.
Issue: Whether the principles of the Mobile-Sierra doctrine apply to the Federal Energy Regulatory Commission’s review of wholesale electricity rates set by contract when those rates are challenged by a non-contracting party.

• Opinion below (DC Circuit)
• Petition for certiorari
• Brief in opposition of Maine Public Utilities et al.
• Brief in opposition of the Federal Energy Regulatory Commission
• Petitioner™s reply brief
• Brief amici curiae of the Electric Power Supply Association, et al. (in support of petitioners)
• Brief amici curiae of American Public Power Association and National Rural Electric Cooperative (in support of respondents)

Docket: 08-751
Title:  El Paso, Texas, et al., v. Janet Napolitano, Secretary of Homeland Security, et al.
Issue: Whether the grant of authority to the Secretary of Homeland Security to “waive all legal requirements” necessary to ensure rapid construction of a border fence is an unconstitutional. delegation of legislative power or sufficient to preempt state and local law

• Opinion below (United States District Court for the Western District of Texas)
• Petition for certiorari
• Brief in opposition
• Petitioner™s reply brief
• Brief amici curiae of the City of Eagle Pass and other cities and other affected persons ( in support of petitioners)
• Brief amici curiae of William D. Araiza and other law professors (in support of petitioners)

Docket: 08-757
Title: Parr v. United States
Issue: What is the standard of proof, under the “true threat” doctrine of Virginia v. Black, for a conviction for threatening to use a weapon of mass destruction against a federal government building, and what testimonial evidence is admissible to establish an intent to threaten?

• Opinion below(7th Circuit)
• Petition for certiorari
• Brief in opposition

Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of  animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?

• Opinion below (3rd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner™s reply brief
• Brief amicus curiae of the Humane Society (in support of petitioner)

Docket: 08-833
Title:  Oliver v. Quarterman
Issue:  Does juror consultation of the Bible during sentencing deliberations  deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner™s reply brief
• Brief amicus curiae of former federal and state prosecutors (in support of petitioner)

Docket: 08-1021
Title:  Gilead Sciences, Inc., et al., v. Trent St. Clare, et al.
Issue: Whether a plaintiff in a “fraud on the market” case under Section 10(b) of the Securities Exchange Act must plead facts with sufficient particularity to support a reasonable, non-speculative belief that the plaintiff ultimately can prove loss causation.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner™s reply brief
• Brief amicus curiae of former SEC Commissioners and officials et al. (in support of petitioners)
• Brief amicus curiae of the Civil Justice Association of California (in support of petitioners)
• Brief amicus curiae of Technology Network (in support of petitioners)
• Brief amicus curiae of National Association of Manufacturers and Chamber of Commerce (in support of petitioners)
• Brief amicus curiae of Washington Legal Foundation (in support of petitioners)
• Brief amicus curiae of the Biotechnology Industry Organization et al. (in support of petitioners)

Docket: 08-1042
Title:  Ernst & Young, et al. v. Bankruptcy Services, Inc.
Issue: Whether when overlapping jury-triable and bench-triable claims are asserted in a bankruptcy proceeding, the jury-triable claims must be tried first, and if by filing a proof of claim in a bankruptcy proceeding, a creditor forfeits its rights to a jury-trial on the estate’s non-bankruptcy counterclaims

• Opinion below (2nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner™s reply brief

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):

Docket: 08-849
Title: Kight v. Turner
Issue: When a federal district court dismisses state law claims under 28 U.S.C. § 1367(c) and the state limitations period has expired, is the time period for refiling such claims in state court limited to 30 days?

• Opinion below (Court of Appeals of Maryland)
• Petition for certiorari
• Brief in opposition
• Brief amicus curiae of North Carolina et al.  (in support of petitioners)

 [Akin Gump represents the respondent]

Docket: 08-1065
Title:  Pottawattamie County et al. v. McGhee et al.
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition for respondent Terry Harrington
• Brief in opposition for respondent Curtis McGhee
• Petitioner™s reply brief
• Brief amicus curiae of National Association of Assistant United States Attorneys and National District Attorneys Association (in support of petitioners)

[Akin Gump represents the amici parties]