Thursday’s Conference

By Tom Goldstein
on Jun 21, 2005 at 8:30 am

This Thursday, the Court will meet in its final Conference before the recess at which it will consider granting petitions for certiorari for next Term. (There will be a further Conference after the last opinions are issued to decide which pending petitions should be granted, the judgment vacated, and the case remanded in light of an intervening S. Ct. ruling.)

The Court now needs to grant cert. in four cases in order to fill its December calendar before the recess. There are a ton of potential grants on this conference because it includes several cases in which the Court sought the views of the federal government (a sign that the case is being considered seriously) and other cases in which the parties expedited the briefing in order to ensure that the petition was considered before the summer recess.

Two grants seem particularly likely:
04-814, Shell Oil v. Dagher (& 04-805) – involving antitrust and joint ventures
04-1131, Whitman v. DOT (& 04-1276) – involving federal employee grievances [Disclosure we represent the petitioner; the Solicitor General has acquiesced to cert. in part]

Six other petitions have quite good chances:
03-1559, Bank of China v. NBM – involving RICO and the “reasonable reliance” requirement in fraud cases
04-165, Comstock Resources v. Kennard – involving the False Claims Act’s original source rule
04-994, Lucent Technologies Inc. v. Felix – involving standing under ERISA
04-1196, Kelley v. Crosby – involving Brady and capital litigation
04-1244, Scheidler v. NOW (& 04-1352) – involving RICO and abortion protests (although the fact that the case was relisted heightens the possibility that the Court may be summarily reversing as the petitioners suggested)
04-1360, Hudson v. Michigan (also relisted) – involving the knock and announce rule and suppression of evidence.

More than ten other cases with receive serious consideration:
03-1202, Hewlett Packard Co. Employee Benefits v. Jebian – involving benefits “deemed denied” under ERISA
03-10777, Keup v. Wis. Dep’t of Health & Fam. Servs. – involving Medicaid reimbursement
04-31, McFarling v. Monsanto Co. – involving antitrust and restrictions on seed use
04-621, Pub. Util. Dist. No. 1 v. Dynegy Power Mktg. – involving the filed-rate doctrine
04-983, Arpaio v. Demery – a case involving police liability for making a public video of arrestees
04-1252, American Pelagic Fishing Company, L.P. v. United States – involving regulatory takings
04-1314, Olson v. Teamsters Local No. 70 – involving a decisionmaker’s knowledge of protected activity in civil rights litigation
04-1372, Sicroff v. Jett – involving bankruptcy discharge
04-1432, Brown v. Montgomery County – involving exhaustion of remedies under Section 1983
04-1441, McCullough v. DeFoy – involving exhaustion in habeas
04-1507, Miller v. United States (& 04-1508) – involving reporters’ First Amendment privilege