At its June 21, 2012 Conference, the Court will consider such issues as the retroactivity of the federal sentencing guidelines, the justiciability of a habeas petition when the petitioner is under supervised release, civil liability for a Miranda violation, and whether “cumulative error” can be a basis for habeas relief.  The Court will additionally consider twelve cases in which the Court called for the views of the Solicitor General.  As Amy discussed, the Solicitor General recommended that the Court deny review in all twelve.

While this is the last scheduled Conference of the year, we expect one more next week.  As Kedar posted, the Court often reserves many of its June grants for its final (unscheduled) Conference.  Last term, the Court granted 13 cases then.

This edition of “Petitions to watch” features 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.

U.S. Airways, Inc. v. McCutchen (Granted )

Docket: 11-1285
Issue(s): Whether the Third Circuit correctly held -- in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits -- that Section 502(a)(3) of the Employee Retirement Income Security Act (ERISA) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.

Certiorari stage documents:

Kia Motors America, Inc. v. Samuel-Bassett

Docket: 11-1257
Issue(s): Whether, contrary to the decisions of this Court and numerous lower courts, a state procedural rule may preclude consideration of a substantial constitutional right when application of that rule serves no legitimate state interest and is a mere subterfuge to circumvent a litigant’s fundamental right to Due Process.

Certiorari stage documents:

Michigan Workers’ Compensation Agency v. Ace American Insurance Co.

Docket: 11-1229
Issue(s): (1) Whether a bankruptcy court’s exercise of its in rem jurisdiction categorically abrogates state sovereign immunity, regardless of the governmental unit’s role in the particular bankruptcy proceeding; and (2) whether the Bankruptcy Code’s abrogation of sovereign immunity extends to a state-law statutory claim that does not involve the discharged debtor.

Certiorari stage documents:

Hassoun v. United States

Docket: 11-1198
Issue(s): (1) Whether Federal Rule of Evidence 701 permits a lay witness with no percipient knowledge of conversations to offer “opinions” as to a speaker’s supposed meaning of words used in those conversations; and (2) whether the terrorism sentencing enhancement may be imposed in the absence of the statutorily-required finding that the defendant’s motive is to intimidate, coerce, or retaliate against government conduct.

Certiorari stage documents:

Jayyousi v. United States

Docket: 11-1194
Issue(s): Whether, consistent with the ruling below and that of four other circuits, and contrary to the rule in five circuits, lay opinion testimony satisfies Federal Rules of Evidence 701(a) and (b) -- which require that lay opinion testimony be “rationally based on the witness’s perception” and that it be “helpful” to the factfinder’s determination -- where the witness has no first-hand knowledge of the underlying events about which the witness opines.

Certiorari stage documents:

Rhodes v. Judiscak

Docket: 11-1177
Issue(s): Whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is serving a term of supervised release in light of United States v. Johnson, under which a finding that a prisoner was over-incarcerated is an “equitable consideration[ ] of great weight” in a later proceeding to reduce his term of supervised release.

Certiorari stage documents:

Federal Trade Commission v. Phoebe Putney Health System, Inc. (Granted )

Docket: 11-1160
Issue(s): (1) Whether the Georgia legislature, by vesting a local government entity with general corporate powers to acquire and lease out hospitals and other property, has “clearly articulated and affirmatively expressed” a “state policy to displace competition” in the market for hospital services, thus rendering federal antitrust laws inapplicable under the “state action doctrine”; and (2) whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity -- which acquired the only competitor of a private actor at the private actor’s behest -- neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital’s operation.

Certiorari stage documents:

Herring v. Florida

Docket: 11-1158
Issue(s): Whether the Florida Supreme Court’s refusal to permit consideration of the standard error of measurement in its determination of mental retardation in capital cases violates the Eighth and Fourteenth Amendments, which forbid the execution of a mentally retarded person under Atkins v. Virginia.

Certiorari stage documents:

GlaxoSmithKline v. Classen Immunotherapies, Inc.

Docket: 11-1078
Issue(s): Whether the Federal Circuit’s interpretation of 35 U.S.C. § 271(e)(1)’s safe harbor from patent infringement liability for drugs – an interpretation which arbitrarily restricts the safe harbor to pre-marketing approval of generic counterparts – is faithful to statutory text that contains no such limitation and decisions of this Court rejecting similar efforts to impose extra-textual limitations on the statute.

Certiorari stage documents:

Micci v. Aleman

Docket: 11-1062
Issue(s): (1) Whether the Seventh Circuit correctly held, on a question that has fractured the circuits, that police may be civilly liable for the use of a suspect’s custodial statement, obtained either in violation of Miranda v. Arizona or as a result of coercion, where the statement was introduced to charge the suspect but the charges were dismissed prior to trial; and (2) whether the Seventh Circuit correctly held – seemingly for the first time by any federal appellate court – that a police officer unconstitutionally coerced a suspect’s statements by using the routine interview technique of lying to the suspect about the strength of the case against him.

Certiorari stage documents:

Genesis HealthCare Corp. v. Symczyk (Granted )

Docket: 11-1059
Issue(s): A case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.

Certiorari stage documents:

Gabayzadeh v. United States

Docket: 11-1034
Issue(s): (1) Whether the “one book” rule in the Sentencing Guidelines, sections 1B1.11(b)(2) and (3), which requires retroactive application of the latest, harsher guidelines when defendants have committed offenses both before and after the Guidelines have been amended, violates the Ex Post Facto Clause; and (2) whether, after this Court rendered the federal sentencing guidelines advisory in its decision in United States v. Booker, the Ex Post Facto Clause continues to forbid applying amendments to the Guidelines retroactively to increase the presumptive punishment of criminal defendants.

Certiorari stage documents:

M.H. v. United States

Docket: 11-1026
Issue(s): (1) Whether the Required Records exception to the Fifth Amendment privilege against self-incrimination applies when an individual, without immunity, is compelled to respond to a subpoena where either the act of production or the admitted absence of required records has incriminating testimonial aspects; and (2) whether the Required Records exception to the Fifth Amendment privilege against self-incrimination applies to bank records under the Bank Secrecy Act, 31 U.S.C. § 5311, even though the Act is primarily a criminal statute, and requires the production of documents which are not customarily kept and have no public aspect.

Certiorari stage documents:

Public Citizen, Inc. v. Federal Energy Regulatory Commission

Docket: 11-1009
Issue(s): Whether rules of the Federal Energy Regulatory Commission (FERC) establishing a system of “market-based rates” for wholesale electric power conflict with provisions of the Federal Power Act, 16 U.S.C. §§ 824 et seq., commanding that all changes in rates and charges must be publicly filed with the FERC before they go into effect and that all rates must be “just and reasonable,” nonpreferential, and nondiscriminatory.

Certiorari stage documents:

Southeastern Federal Power Customers, Inc. v. Georgia

Docket: 11-1007
Issue(s): (1) Whether Article III of the United States Constitution permits an appellate court independently to adjust resource allocations for a federal multipurpose water project based in part on United States Army Corps of Engineers (“Corps”) reports that were never presented to Congress rather than solely on the Corps reports upon which Congress originally relied to authorize and allocate resources for the project. (2) Whether the Eleventh Circuit’s ruling is inconsistent with the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act because it makes judicial review of agency actions unavailable indefinitely, including review of water storage allocations made over a 40 year period, if the agency labeled the actions as “interim” and has not sought to evade judicial review. (3) Whether the Eleventh Circuit created an irreconcilable conflict with the D.C. Circuit by disregarding a directly relevant and fundamentally inconsistent ruling by the D.C. Circuit in the same underlying cases.

Certiorari stage documents:

Alabama v. Georgia

Docket: 11-1006
Issue(s): Whether, under step one of this Court’s Chevron analysis, in determining whether Congress has “directly spoken to the precise question at issue” – thereby foreclosing an agency’s discretion to interpret a statute it administers – a court may base its conclusion on what it considers to be the best construction of ambiguous language.

Certiorari stage documents:

Florida v. Georgia

Docket: 11-999
Issue(s): Whether the Army Corps of Engineers must comply with the explicit statutory limit in the Water Supply Act of 1958 that requires Congressional approval before the Corps undertakes a major reallocation of federal reservoir storage to provide local water supply.

Certiorari stage documents:

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Cases in which the Court called for the views of the Solicitor General

EM Ltd. v. Republic of Argentina

Docket: 11-604
Issue(s): Whether, when a central bank has been adjudicated under First National City Bank v. Banco Para El Comercio Exterior de Cuba to be the alter ego of a foreign state that has waived immunity from attachment and execution, Section 1611(b)(1) of the Foreign Sovereign Immunities Act immunizes the assets held in the name of that bank. (Sotomayor, J., recused)

Certiorari stage documents:

CVSG Information:

Vance v. Ball State University (Granted )

Docket: 11-556
Issue(s): Whether the “supervisor” liability rule established by Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Certiorari stage documents:

CVSG Information:

Los Angeles County Flood Control District v. Natural Resources Defense Council (Granted )

Docket: 11-460
Issue(s): When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, whether there can be a “discharge” from an “outfall” under the Clean Water Act, notwithstanding this Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the Act. (limited to question 2)

Certiorari stage documents:

CVSG Information:

Rubin v. Islamic Republic of Iran

Docket: 11-431
Issue(s): Whether Section 1609 of the Foreign Sovereign Immunities Act of 1976, which provides that the property of a foreign state and its agencies and instrumentalities is immune from execution and attachment unless that property falls within a statutory exception to immunity, permits discovery in aid of execution only with respect to specific property identified by the plaintiff as potentially subject to attachment. (Scalia, J., and Kagan, J., recused)

Certiorari stage documents:

CVSG Information:

Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondent in this case.
Docket: 11-347
Issue(s): Whether the Ninth Circuit should have deferred to the Environmental Protection Agency’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to the National Pollutant Discharge Elimination System. (Breyer, J., recused.)

Certiorari stage documents:

CVSG Information:

Decker v. Northwest Environmental Defense Center (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondent in this case.
Docket: 11-338
Issue(s): (1) Whether a citizen may bypass judicial review of a National Pollutant Discharge Elimination System (NPDES) permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the Clean Water Act (CWA); and (2) whether the Ninth Circuit erred when it held that stormwater from logging roads is industrial stormwater under the rules of the CWA and the Environmental Protection Agency, even though EPA has determined that it is not industrial stormwater? (Breyer, J. recused)

Certiorari stage documents:

CVSG Information:

Corboy v. Louie

Docket: 11-336
Issue(s): (1) Whether petitioners have standing to seek a refund of their own taxes; and (2) whether the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race.

Certiorari stage documents:

CVSG Information:

Pacific Merchant Shipping Association v. Goldstene

Docket: 10-1555
Issue(s): (1) Whether the Commerce Clause and the Supremacy Clause prohibit California's extraterritorial exercise of its police powers to require the use of specified low-sulfur fuels on foreign- and U.S.-flagged vessels engaged in foreign and interstate commerce while these ships are on the high seas; and (2) whether, by establishing the measure of California's seaward boundary at three geographical miles distant from its coast line, the Submerged Lands Act preempts California's regulations that require foreign- and U.S.-flagged vessels engaged in international and interstate commerce to use specified low-sulfur fuels while those ships are navigating outside of the state's three-mile seaward territorial boundary so established.

Certiorari stage documents:

CVSG Information:

Cook v. Rockwell International Corp.

Docket: 10-1377
Issue(s): (1) Whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and (2) whether, if a federal standard applies, a property owner whose land has been contaminated by radioactive plutonium, resulting in lost property value, must show some physical injury to the property beyond the contamination itself in order to recover for damage to property.

Certiorari stage documents:

CVSG Information:

DirecTV, Inc. v. Levin

Docket: 10-1322
Issue(s): (1) Whether, in a Commerce Clause challenge to a state statute, courts need not examine the effects of the statute if it can be characterized as distinguishing between two competitors based upon their different methods of operation; and (2) whether courts need not examine the statute's effects because some of the beneficiaries of the discriminatory scheme are major interstate companies.

Certiorari stage documents:

CVSG Information:

Faculty Senate of Florida Int’l University v. State of Florida

Docket: 10-1139
Issue(s): (1) Whether Florida's prohibition on the use of state or private funds by universities to support academic travel to Cuba and other disfavored nations is consistent with the Court's decision in Crosby v. National Foreign Trade Council; and (2) whether state-enacted economic sanctions that restrict the use of both public and private funds are preempted by federal law.

Certiorari stage documents:

CVSG Information:

Bank Melli Iran NY Rep. Office v. Weinstein

Docket: 10-947
Issue(s): (1) Whether the Terrorism Risk Insurance Act overrides the Court's holding in First National City Bank v. Banco para el Comercio Exterior de Cuba and applicable treaty provisions by authorizing creditors of a foreign sovereign to execute against assets of the sovereign's juridically distinct instrumentalities; and (2) whether Congress violated Plaut v. Spendthrift Farm, Inc. by retroactively revising the parties bound by a judgment that was already final when the statute was enacted.

Certiorari stage documents:

CVSG Information:

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Cases involving lawyers from Goldstein & Russell, P.C. (listed without regard to the likelihood of being granted):

Abdur’Rahman v. Colson

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.
Docket: 11-1215
Issue(s): (1) When is “cumulative error” a legally permitted basis for relief on federal habeas corpus; (2) is a prosecutor’s suppression of material exculpatory evidence excused whenever the defendant was aware of the facts contained therein, notwithstanding that the suppression prevented the defense from presenting the evidence of those facts to the jury; and (3) is defense counsel’s failure to investigate evidence that has some negative characteristics categorically immune from a claim of ineffective assistance of counsel?

Certiorari stage documents:

Already, LLC v. Nike, Inc. (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondent in this case.
Docket: 11-982
Issue(s): Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities.

Certiorari stage documents:

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The following petitions have been re-listed for the Conference of June 21.  If any other paid petitions are redistributed for this Conference, we will add them below as soon as their redistribution is noted on the docket.

United States v. Trunk

Docket: 11-1115
Issue(s): Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause.

Certiorari stage documents:

Sebelius v. Auburn Regional Medical Center (Granted )

Docket: 11-1231
Issue(s): Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicaid payment determination made by a fiscal intermediary, 42 U.S.C. § 1395oo(a)(3), is subject to equitable tolling.

Certiorari stage documents:

Comcast v. Behrend (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.
Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Matthew Bush, Petitions to watch | Conference of June 21, 2012 (Updated), SCOTUSblog (Jun. 20, 2012, 11:34 AM), http://www.scotusblog.com/2012/06/petitions-to-watch-conference-of-june-21-2012/