Petitions to Watch | 3.20.09

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on March 20. 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: 08-497
Title: Amerisource Corporation v. United States
Issue: Whether the government’s seizure of personal property for use as evidence in a criminal matter effected a taking requiring just compensation under the Fifth Amendment if the property was associated with criminal activity but its owner was not involved in that criminal activity.

• Opinion below (Federal Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner

Docket: 08-571
Title: Elko County, Nevada, v.  The Wilderness Society, et al.
Issue: Whether an intervenor as of right must establish independent standing and, in an action brought pursuant to the Quiet Title Act, 28 U.S.C. 2409a, must establish an ownership interest in the land.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Brief amicus curiae of Mountain States Legal Foundation(in support of petitioner)

Docket: 08-630
Title: Mashburn v. Scrivner
Issue:  Where a bankruptcy debtor takes bankruptcy estate funds and then disobeys a bankruptcy court’s order to turn over the funds to the bankruptcy trustee, does the bankruptcy court have discretion under its inherent power to sanction and deter bad faith conduct and/or under 11 U.S.C. § 105 to grant the trustee a surcharge?

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition

Docket: 08-652
Title: Beard v. Abu-Jamal
Issue: Whether a Pennsylvania Supreme Court holding, based on precedent later reversed by the 3rd Circuit, amounted to an “unreasonable” application of federal law and as such habeas relief should be granted for the defendant’s Mills claim.

• Opinion below (3rd Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner

Docket: 08-656
Title: Jezierski v. Holder
Issue:  Whether the court of appeals correctly held that it lacked jurisdiction to review the Board of Immigration Appeals’ denial of petitioner’s motion to reopen immigration proceedings under 8 U.S.C. 1252(a)(2)(B)(ii) and (D).

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

Docket: 08-673
Title: Clark v. United States
Issue: Whether Harris v. United States should be overruled and whether prosecutors must prove drug quantity beyond a reasonable doubt, when that quantity triggers under 21 U.S.C. § 841 a mandatory minimum greater than the trial court’s preferred sentence but less than the maximum authorized by the verdict.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner
• Brief amicus curiae of the National Association of Criminal Defense Lawyers (in support of petitioner)

Docket: 08-770
Title: Dell Marketing L.P. v. Taxation and Revenue Department of the State of New Mexico
Issue: Whether a state may impose gross receipts taxes on sales by an out-of-state mail-order computer vendor with no physical presence in the state but with substantial in-state activities and a third party contractor.

• Opinion below (Court of Appeals of the State of New Mexico)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner

Docket: 08-886
Title: Pavey v. Conley
Issue: When the defendant in an action for damages governed by the Prison Litigation Reform Act (PLRA) invokes the statutory affirmative defense of exhaustion, is the defense to be litigated under the rules of procedure applicable to affirmative defenses, including trial by jury to resolve the disputed factual issues underlying the defense?

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner
• Brief amici curiae Uptown People’s Law Center, et al. (in support of petitioner)

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

Docket: 08-626
Title: Level 3 Communications, LLC v. City of St. Louis
Issue: Whether local governments’ fees and restrictions on telecommunication carriers’ access to public rights-of-way are preempted by federal law if they do not preclude the plaintiff from providing telecommunications services.

[Akin Gump represents the petitioner.]

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner

Docket: 08-759
Title: Sprint Telephony PCS, L.P. v. San Diego County
Issue: Does U.S.C. § 253(a) preempt local or state regulations that govern the construction of individual wireless facilities?

[Sprint Telephony PCS presents the same question as Level 3 and is also distributed for this conference. Akin Gump filed an amicus brief of Level 3 in support of neither party.]

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Reply brief for petitioner
• Brief amicus curiae of Level 3 Communications (in support of neither party)
• Brief amici curiae of PCIA-The Wireless Infrastructure Association et al. (in support of the petitioner)
• Brief amici curiae of NEXTG Networks of California, Inc and the Das Forum (in support of petitioner)
• Brief amicus curiae of the City of St. Louis (in support of respondents)