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Petitions to Watch | Conference of 1.8.10

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on Jan 5, 2010 at 1:56 pm
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This (extra-long) edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on January 8.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

UPDATE, Jan. 7: Today United States v. Williams (09-466), below, was re-scheduled for review at the January 22 conference.  I’m leaving it on the January 8 list for those interested in the briefs, but with the understanding that of course it will not be granted at conference tomorrow.

UPDATE, 3 p.m.: We’ve removed McCullen v. Coakley (09-592) and postponed it to a later edition of Petitions to Watch, due to the Court’s request for a response that is now due February 4.

Docket: 08-1462; 08-1571
Title: York v. Robinson; Cooley v. Eng
Issues: (1) In a First Amendment retaliation case, is the question whether a public employee spoke pursuant to his “official duties” a question of law for the court or instead a mixed question of law and fact that should first be submitted to a trier of fact; and (2) what criteria should be applied in determining whether a public employee’s communication occurred pursuant to his “official duties”?

For 08-1462:

For 08-1571:

Docket: 09-122
Title: Hunter v. United States
Issues: (1) Whether a prior conviction for carrying a concealed weapon constitutes a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e); and (2) whether a legally erroneous application of the ACCA, which resulted in a mandatory minimum sentence five years above the otherwise applicable statutory maximum for the offense, violates due process.

Docket: 09-194
Title: Gomis v. Holder
Issue: Whether a court of appeals has jurisdiction to review the conclusion by the Board of Immigration Appeals that petitioner had failed to establish “to the satisfaction of the Attorney General” either “changed circumstances” or “extraordinary circumstances” to excuse the untimely filing of her asylum application under 8 U.S.C. § 1158(a)(2)(D).

Docket: 09-229
Title: Khan v. Holder
Issue: Did petitioner present a question of law within the meaning of 8 U.S.C. § 1252(a)(2)(D), when he challenged only the application of the statutory eligibility standards to the facts of his case, rather than the underlying facts themselves or any ultimate discretionary authority the agency may possess to deny an asylum application as untimely?

Docket: 09-233
Title: Triple-S Management Corporation v. Municipal Revenue Collection Center
Issue: Is the executive branch, unlike the legislative branch, free of all due process constraints on retroactive government action, as long as it asserts that its earlier interpretation of law was “wrong”?

Docket: 09-277
Title: Connecticut Department of Public Utility Control v. Federal Energy Regulatory Commission
Issues: (1) Should a court defer to the Federal Energy Regulatory Commission’s interpretation of its jurisdiction under the Federal Power Act to set the amount of installed electric capacity that each State must provide for adequate, sufficient, reliable service; and (2) does FERC’s asserted jurisdiction to set ICR as a “practice affecting” wholesale rates encroach impermissibly on the states’ traditional powers to determine the adequacy, sufficiency, and reliability of electric facilities or services to be furnished and to regulate generation facilities.

Docket: 09-289
Title: Mississippi v. City of Memphis
Issue: Whether ground water residing within the boundaries of the State of Mississippi at the time it entered the Union, which did not under natural circumstances flow into the State of Tennessee, constitutes a natural resource over which the State of Mississippi holds the rights of a sovereign, making the doctrine of equitable apportionment inapplicable.

Docket: 09-306
Title: Allen v. Virginia
Issue: Is Virginia Code § 18.2-374.1 (2003), prohibiting the production of “sexually explicit visual material which utilizes or has as a subject a person less than eighteen years of age,” overbroad on its face because it reaches a substantial amount of protected speech?

Docket: 09-329
Title: Chase Bank USA v. McCoy
Issue: When a creditor increases the periodic rate on a credit card account in response to a cardholder default, pursuant to a default rate term that was disclosed in the contract governing the account, does Regulation Z, 12 C.F.R. § 226.9(c), require the creditor to provide the cardholder with a change-in-terms notice even though the contractual terms governing the account have not changed?

Docket: 09-335
Title: Astellas Pharma, Inc. v. Lupin Limited
Issue: Whether product-by-process claims are infringed by an identical product made by a different process.

Docket: 09-350
Title: Los Angeles County v. Humphries
Issues: (1) For a claim for declaratory relief against a local public entity, must the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity; and (2) if the plaintiff has not made such a showing, may he or she be a “prevailing party” under 42 U.S.C. § 1988 for purposes of a fee award?

Docket: 09-356
Title: Paulsen v. CNF, Inc.
Issue: Do participants in a pension plan for which the Pension Benefit Guaranty Corporation serves as a trustee have Article III standing to sue prior plan fiduciaries for breach of fiduciary duty under ERISA, when their pension benefits have been reduced due to underfunding of the plan?

Docket: 09-370
Title: Lovely v. United States
Issue: Whether the court of appeals correctly applied the “incident to service” test to bar petitioner’s claim for intentional infliction of emotional distress based on the actions taken by his Reserve Officers’ Training Corps Battalion Commander relating to petitioner’s incidents of plagiarism and alleged sexual assault of a female cadet.

Docket: 09-409
Title: Palmer v. Waxahachie Independent School District
Issues: (1) Whether public schools may broadly impose content-neutral and viewpoint-neutral restrictions on student speech as long as the restrictions satisfy the lower standard of intermediate scrutiny normally applied to expressive conduct, and not to pure speech; and (2) whether the Fifth Circuit properly applied that intermediate scrutiny standard to the facts of this case, when it did not require the government to demonstrate that the regulation at issue actually furthers an important government interest or that it is no greater than necessary to serve such an interest.

Docket: 09-466
Title: United States v. Williams
Issue: Whether a defendant is subject to a mandatory consecutive sentence specified by 18 U.S.C. § 924(c) — for committing certain weapons offenses in connection with “any crime of violence or drug trafficking crime,” “[e]xcept to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law” — if he or she is also subject to a greater mandatory minimum sentence on a different count of conviction charging a different offense for different conduct.

Docket: 09-494
Title: Crawford v. TRW Automotive U.S. LLC
Issues: (1) Whether § 510 of ERISA applies to plant closing cases; (2) whether a mixed-motive analysis should be applied to ERISA § 510; (3) whether alter ego concepts should be applied to ERISA § 510 cases to impose collectively bargained obligations negotiated for an employer’s single site to other non-unionized sites of the same employer; and (4) whether the Court should address remedies for ERISA § 510 violations when the lower courts found no ERISA § 510 liability and the lower courts did not reach the issue of remedies.

Docket: 09-519
Title: Alameida v. Phelps
Issue: Whether a court of appeals’ alteration of circuit law on calculating the habeas corpus statute of limitations constitutes an “extraordinary circumstance” sufficient to vacate a final judgment pursuant to Federal Rule of Civil Procedure 60(b).

Docket: 09-560
Title: Carlson v. Bobadilla
Issues: (1) Whether the Eighth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act (AEDPA) when it held that the Minnesota Supreme Court’s ruling that the statement by an abused child to a child-protection worker was not testimonial was “an unreasonable application of clearly established Federal law, as determined by the Supreme Court and (2) whether the same court exceeded its authority under AEDPA when it made factual determinations contrary to those made by the Minnesota Supreme Court, failed to review the actual interview of the child, and rejected the state supreme court’s interpretation of the state statute under which the interview was conducted.

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

Docket: 09-288
Title: Puget Sound Energy, Inc. v. California
Issues: (1) Whether the Ninth Circuit erred in holding that the use by the Federal Energy Regulatory Commission (“FERC”) of a pre-enforcement evidentiary proceeding to inform its decision whether to enforce § 206 of the Federal Power Act, 16 U.S.C. § 824e, subjected to judicial review that agency’s otherwise unreviewable choice not to initiate a § 206 enforcement proceeding; (2) whether the Ninth Circuit deviated from the settled administrative law of other circuits by interfering with FERC’s discretion to structure its own proceedings in ordering FERC to consider in one proceeding matters that FERC had determined were more properly addressed in a separate and ongoing proceeding;  and (3) whether the same court exceeded its authority by rejecting FERC’s interpretation of an administrative complaint that accorded with the complainant’s own interpretation and was based on the entire context of the complaint.

[Akin Gump represents one of the respondents.]

Docket: 09-367
Title: Dolan v. United States
Issue: Whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.

[The Stanford Law School Supreme Court clinic affiliated with Akin Gump and Howe & Russell represents the petitioner.]

Docket: 09-384
Title: Office of Alaska Governor v. Equal Employment Opportunity Commission
Issues: (1) Whether high-level policymaking, advisory, and personal staff chosen by a Governor can assert a First Amendment right to continued employment in such positions after conducting press conferences criticizing the Governor and his actions; (2) whether the court of appeals correctly held that Congress unequivocally expressed its intent to abrogate state sovereign immunity in enacting Government Employee Rights Act to provide coverage to “State employees” “previously exempt” under Title VII of the Civil Rights Act of 1964; and (3) whether Congress validly abrogated state sovereign immunity under Section 5 of the Fourteenth Amendment when it extended the protections of Title VII to previously excluded state employees.

[Akin Gump represents the petitioner.]

Other petitions from earlier editions of Petitions to Watch were re-listed for the January 8 conference:

  • Busch v. Marple Newton School District (09-315): originally Conference of 12.11
  • Noriega v. Pastrana (09-35): originally Conference of 10.9

Posted in Cases in the Pipeline

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