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]