This edition of "Petitions to watch"  features cases up for consideration at the Justices' January 14 conference.  These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues

Norfolk Southern Railway Company v. Groves

Docket: 09-1212
Issue(s): 1) Whether “consignee” can be properly defined in railroad tariffs as the party named as consignee on a bill of lading that physically accepts delivery of all freight consigned to it, or whether the definition of “consignee” in such tariffs must also require proof that the party so named on the bill of lading explicitly consented to being named as consignee before accepting delivery; 2) whether the Supreme Court should resolve the circuit split over the definition of “consignee”; and 3) whether the courts have subject matter jurisdiction to interpret the terms or expand the requirements of a railroad's rail car demurrage tariff.

Certiorari stage documents:

CVSG Information:

National Meat Association v. Harris (Granted )

Docket: 10-224
Issue(s): (1) Did the Ninth Circuit err in holding that a presumption against preemption requires a narrow interpretation of the Federal Meat Inspection Act's express preemption provision, in conflict with this Court's decision in Jones v. Rath Packing Co. (1977) that the provision must be given a broad meaning? (2) When federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA? (3) Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the premises, facilities, [or] operations of federally regulated slaughterhouses?

Certiorari stage documents:

CVSG Information:

Precision Pine & Timber, Inc. v. United States

Docket: 10-341
Issue(s): (1) Whether the Federal Circuit erred by creating a defense to breach of the implied contractual duties under the sovereign acts doctrine that is at odds with the two-part test established by this Court in United States v. Winstar Corp. (1996), that has been adopted as the test for application of the doctrine by the Federal Circuit? (2) whether the Federal Circuit erred by failing to apply its own, binding, objective reasonableness standard for determining whether the government had breached its implied contractual duties and instead adopted a new legal standard requiring a contractor to prove that the government had a subjective intent to breach its implied contractual duties? (3) If questions 1 and 2 are answered in the negative, whether the Federal Circuit erred when it reversed the trial court's finding of a breach of contract at summary judgment under the reasonableness standard, but did not remand the case to the trial court to allow the contractor an opportunity to establish facts necessary to prove its breach claim under the newly announced, subjective intent standard?

Certiorari stage documents:

Pella Corporation v. Saltzman

Docket: 10-355
Issue(s): (1) Whether a court may certify an “issue” class under Federal Rule of Civil Procedure 23(b)(3) to adjudicate discrete issues that will not establish liability for any claim; (2) whether a court may certify an “issue” class under Rule 23(b)(2) to adjudicate discrete issues that will not result in final declaratory relief; and (3) whether a court may certify a nationwide class under Rule 23(b)(2) to pursue state-law claims without analyzing the underlying state laws to determine that they are consistent.

Certiorari stage documents:

Apotex, Inc. v. Sebelius

Docket: 10-453
Issue(s): Whether a generic drug manufacturer may forfeit marketing exclusivity under 21 U.S.C. § 355(j)(5)(D) based on “unilateral” action by the holder of the challenged patent.

Certiorari stage documents:

Ford Motor Credit Company v. Michigan Department of Treasury, et al.

Docket: 10-481
Issue(s): Whether the state courts below properly held that a state tax law having indefinite retroactive reach with respect to tax refunds otherwise available under state law satisfies due process even when applied to deny refunds owed to a taxpayer from the preceding five-year period.

Certiorari stage documents:

Estalita v. Holder

Docket: 10-517
Issue(s): Whether a noncitizen who has complied with a deportation order should be afforded her right, under 8 U.S.C. § 1229a(c)(7)(A), to have her single, timely motion to reopen the proceeding considered on its merits, notwithstanding 8 C.F.R. § 1003.2(d) which applies a post-departure bar on such motions?

Certiorari stage documents:

Super Duper, Inc. v. Mattel, Inc.

Docket: 10-603
Issue(s): (1) Whether a district court may award a plaintiff the defendant's profits in the absence of a finding that the defendant intentionally infringed the plaintiff's mark; and (2) whether a district court may award a plaintiff the defendant's profits in the absence of a finding that customers were actually confused by the defendant's infringement.

Certiorari stage documents:

Brooks v. Gaenzle

Docket: 10-621
Issue(s): Whether a fleeing suspect, who was intentionally shot in the back by police but not immediately arrested, was “seized” for Fourth Amendment purposes.

Certiorari stage documents:

The following petitions have been re-listed for the conference of January 14.  If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

Douglas v. Independent Living Center of Southern California (Granted )

Docket: 09-958
Issue(s): (1) Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce 42 U.S.C. § 1396a(a)(30)(A) of the Medicaid Act by asserting that the provision preempts a state law reducing reimbursement rates; and (2) whether a state law reducing Medicaid reimbursement rates may be held preempted by Section 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute.

Certiorari stage documents:

CVSG Information:

Douglas v. California Pharmacists Association (Granted )

Docket: 09-1158
Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Certiorari stage documents:

Douglas v. Santa Rosa Memorial Hospital (Granted )

Docket: 10-283
Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Certiorari stage documents:

Swarthout v. Cooke

Docket: 10-333
Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions.

Certiorari stage documents:

Howes v. Fields (Granted )

Docket: 10-680
Issue(s): Whether this Court's clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Christa Culver, Petitions to watch | Conference of 01.14.11, SCOTUSblog (Jan. 14, 2011, 1:07 PM), http://www.scotusblog.com/2011/01/petitions-to-watch-conference-of-01-14-11/