Petitions to Watch | Conference of 3.5.10

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow on Friday, March 5.  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.

Title: Bruesewitz v. Wyeth
Docket: 09-152
Issue: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

• Opinion below (3d Circuit)
• Petition for certiorari
• Brief in opposition
• Supplemental brief addressed to the amicus brief of the United States in American Home Products Corp. v. Ferrari
• Amicus brief of the National Vaccine Information Center

Title: American Chemistry Council v. Sierra Club
Docket: 09-495
Issue: Whether a petitioner may challenge a Clean Air Act regulation after the Act’s sixty-day time period for judicial review has expired, on the ground that the regulatory context of the regulation has changed sufficiently to alter the stakes for judicial review, without first filing a petition with the Environmental Protection Agency to rescind or alter the regulation.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Brief for the federal respondents in opposition
• Petitioner’s reply
• Amicus brief of the Chamber of Commerce of the United States

Title: Hammer v. Ashcroft
Docket: 09-504
Issues: (1) Whether a permanent ban on face-to-face press interviews with male-death-row inmates, a sub-class of federal prisoners, violates the First Amendment; and (2) whether, to justify such a ban, a “legitimate penological interest” may be established as a matter of law either through post-hoc litigation declarations referring to “security concerns” or, alternatively, by a court’s ability to hypothesize such concerns.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the National Police Accountability Project et al.
• Amicus brief of the Reporters Committee for Freedom of the Press et al.
• Amicus brief of the National Lawyers Guild

Title: Perkins v. Department of Veterans Affairs
Docket: 09-513
Issue: Whether “actual damages” under the Privacy Act, 5 U.S.C. § 552a, are restricted to pecuniary losses only.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief

Title: National Aeronautics and Space Administration v. Nelson
Docket: 09-530
Issues: Whether the government violates a federal contract employee’s constitutional right to informational privacy by (1) asking in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year and/or (2) asking the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility — when the employee’s and reference’s responses are used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. § 552a.

• Opinion below (9th Circuit, denial of rehearing en banc)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: McCullen v. Coakley
Docket: 09-592
Issues: Whether the establishment by the Commonwealth of Massachusetts of unique speech-free zones around abortion clinics is consistent with the First and Fourteenth Amendments.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners’ reply
• Amicus brief of the American Center for Law and Justice
• Amicus brief of Constitutional Law Professors
• Amicus brief of 40 Days for Life
• Amicus brief of Walter B. Hoye II and the Life Legal Defense Foundation
• Amicus brief of Dr. Alveda King et al.

Title: Thaler v. Moore
Docket: 09-627
Issues: (1) Whether the district court had authority to grant relief on the respondent’s unexhausted and procedurally defaulted claims when he did not establish either cause or prejudice for his failure to properly present the claims in state court; and (2) whether the courts below erroneously interpreted Texas law in finding that the respondent’s IQ — measured at 76 and 74 prior to his conviction — indicated significantly subaverage intellectual functioning.

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition

Title: Shabaz v. United States
Docket: 09-636
Issue: Whether the “unambiguous and unequivocal request” rule about invocation or waiver of the right to counsel applies in both pre- and post-waiver settings, thereby eliminating the government’s heavy burden of proving that a waiver has occurred or instead applies only in post-waiver or re-invocation settings, after the heavy burden has been met.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Kentucky v. Baker
Docket: 09-775
Issue: Do the Kentucky residency restrictions for registered sex offenders violate the Ex Post Facto Clause when applied to registrants who committed their offenses requiring registration prior to the effective date of the statute but who resided in a prohibited area after the statute took effect?

• Opinion below (Supreme Court of Kentucky)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Case in which the Solicitor General has recently filed a brief for the United States, as directed by the Court:

Title: American Home Products Corporation v. Ferrari
Docket: 08-1120
Issue: Does the National Childhood Vaccine Injury Act of 1986 preempt a design defect state-law claim against a vaccine manufacturer?

• Opinion below (Supreme Court of Georgia)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Pacific Legal Foundation
• Amicus brief of the American Academy of Pediatrics et al.
• Supplemental brief of the petitioners
• Supplemental brief for the respondents
• Amicus brief of the United States

Case involving lawyers from Akin Gump or Howe & Russell, listed without regard to likelihood of being granted:

Title: Ferguson v. Holder
Docket: 09-263
Issues: (1 )Whether this Court’s holding in INS v. St. Cyr that Section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (which repealed a provision allowing the Attorney General to waive deportation) does not apply to pre-enactment convictions applies to all immigrants whose convictions pre-date IIRIRA; and (2) whether the presumption against retroactivity applies only when individuals can establish either subjective or objective reliance on prior law.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Immigrant Defense Project et al.

[Akin Gump and Howe & Russell represent the petitioner in this case.]

The following cases that appeared on earlier editions of Petitions to Watch have been redistributed for the March 5 conference:

• Saulsberry v. Myers (09-451): originally conference of February 19
• Belleque v. Moore (09-658): originally conference of February 19
• Nurre v. Whitehead (09-671): originally conference of February 19
• Snyder v. Phelps (09-751): originally conference of February 19