Petitions to Watch | Conference of 5.13.10

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow, Thursday, May 13.  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: Robinson v. Lehman
Docket: 09-697
Issues: (1) Whether, viewed in a light most favorable to the respondent, it was objectively reasonable for police officers to believe that the lethal risks presented by the respondent justified deadly force, based on his behavior; and (2) whether the officers were improperly denied qualified immunity when at the time of this incident, neither the Supreme Court nor any court of appeals had held that the Fourth Amendment is violated when an officer uses deadly force to protect innocent persons from significant risk of highly dangerous vehicular flight.

• Opinions below (9th Circuit): original (2007) and affirmation on remand (2009)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Textron, Inc. v. United States
Docket: 09-750
Issue: Whether the work-product privilege in Federal Rule of Civil Procedure 26(b)(3), which protects documents that are “prepared in anticipation of litigation or for trial,” is limited to documents that are prepared for use in litigation.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the American Bar Association
• Amicus brief of the Association of Corporate Counsel
• Amicus brief of the Chamber of Commerce of the United States
• Amicus brief of the Committee on Taxation et al.
• Amicus brief of the Council on State Taxation
• Amicus brief of DRI
• Amicus brief of the New England Legal Foundation
• Amicus brief of the Product Liability Advisory Council
• Amicus brief of the Tax Executives Institute, Inc.
• Amicus brief of the Washington Legal Foundation
• Amicus brief of U.S. Steel Corporation et al.

Title: Sharp v. United States
Docket: 09-820
Issues: (1) Whether, as a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, the shore defense structure constitutes a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure; (2) whether an owner of upland property is strictly liable under Section 10 of the Rivers and Harbors Appropriation Act of 1899 for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States; and (3) whether the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” is sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Pacific Legal Foundation
• Amicus brief of the Bay Planning Coalition and the California Building Industry Association

Title: Contreras-Martinez v. Holder
Docket: 09-830
Issue: Whether a group must be “socially visible” and “particularized,” as the Board of Immigration Appeals requires, to qualify as a “particular social group” for purposes of the Immigration and Nationality Act.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Wall v. Kholi
Docket: 09-868
Issue: Whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Standard Insurance Co. v. Lindeen
Docket: 09-885
Issues: (1) Whether a state rule banning discretionary clauses, with the sole purpose and effect of dictating universalde novo review by the federal courts of Employee Retirement Income Security Act benefits decisions, is preempted by ERISA; and (2) whether the states may eliminate the option of a deferential federal court standard of review that Congress made available to the creators of ERISA plans.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: United States v. Juvenile Male
Docket: 09-940
Issue: Whether application of the registration and notification provisions of the Sex Offender Registration and Notification Act to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment violates the ex post facto clause of the Constitution.

• Opinion below (9th Circuit)
• Petition for certiorari
• Petitioner’s reply

Title: Louisiana Safety Association of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London
Docket: 09-945
Issue: Whether Chapter 2 of the Federal Arbitration Act is an “Act of Congress” subject to the anti-preemption provision of the McCarran-Ferguson Act.

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Moore v. Hosemann
Docket: 09-982
Issues: (1) Whether Federal Rule of Civil Procedure 4(e)’s provision for service of process on individuals applies to official-capacity actions filed against state officers; and (2) whether the court of appeals erred in abstaining from deciding the merits of petitioner’s constitutional claim rather than seeking certification by the highest state court.

• Opinion below (5th Circuit)
• Petition for certiorari
• Petitioner’s supplemental brief
• Brief in opposition

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

Title: SKF USA, Inc. v. Customs and Border Protection
Docket: 09-767
Issue: Whether the government engages in viewpoint discrimination in violation of the First Amendment when it denies eligibility for monetary benefits solely on the basis of an applicant’s publicly expressed opposition to a government investigation.

• Opinion below (Federal Circuit)
• Petition for certiorari
• Brief in opposition for the federal respondents
• Brief in opposition for respondent Timken U.S. Corporation
• Petitioner’s reply
• Amicus brief of Ashley Furniture Industries, Inc. et al.
• Amicus brief of Furniture Brands International, Inc.
• Amicus brief of Giorgio Foods, Inc. et al.
• Amicus brief of Koyo Corporation

The following petition has been relisted for the conference of May 13.  If any other petitions from previous editions of Petitions to Watch are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

• De la Rosa v. Holder (09-594): originally conference of 4.23.10
• Cablevision Systems Corporation v. Federal Communications Commission (09-901): originally conference of 4.30.10