Federal Judiciary

Petitions to watch | Conference of 01.14.11

By Christa Culver

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

Title: 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:

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Supplemental brief
• Amicus brief for the Association for American Railroads
• Petitioner's reply

CVSG Information:

• Invited: October 4, 2010
• Filed: December 10, 2010 (Deny)

Title: National Meat Association v. Brown
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:

• Petition for certiorari
• Brief in opposition for the non-state respondents
• Brief in opposition
• Amicus brief of the American Association of Swine Veterinarians et al.

Title: 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:

• Opinion below (Court of Appeals for the Federal Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the Federal Timber Purchasers Committee, et al.
• Petitioner's reply

Title: 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:

• Opinion below (7th circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of the National Association of Home Builders et al.
• Amicus brief of the Product Liability Advisory Council, Inc.
• Amicus brief of the Defense Bar

Title: 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:

• Opinion below -- unavailable (D.C. Circuit, unreported)
• Petition for certiorari
• Brief in opposition
• Brief for federal respondents in opposition
• Amicus brief of AARP and the Consumer Federation of America
• Petitioner's reply

Title: 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:

• Opinion below (Michigan Court of Appeals)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of the Council on State Taxation et al.
• Amicus brief of the U.S. Chamber of Commerce et al.

Title: 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:

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

Title: 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:

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the Stuttering Foundation et al.
• Petitioner's reply

Title: Roberts v. Kauffman Racing Equipment, LLC
Docket: 10-617
Issue(s): Whether the Due Process Clause permits a state to exercise personal jurisdiction over a nonresident defendant based solely on a claim that the defendant committed an intentional tort on the Internet knowing that the plaintiff resided in the forum State.

Certiorari stage documents:

• Opinion below (Ohio Supreme Court)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the Center for Democracy & Technology
• Petitioner's reply

Title: 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:

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

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.

Title: Maxwell-Jolly v. Independent Living Center of Southern California
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:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition of respondent Independent Living Center
• Brief in opposition of respondents Sacramento Family Medical Clinics et al.
• Supplemental brief for petitioner
• Amicus brief of twenty-two states
• Denial of motion to vacate (9th Circuit)
• Petitioner's reply

CVSG Information:

• Invited: May 24, 2010
• Filed: December 3, 2010 (Deny)

Title: Maxwell-Jolly v. California Pharmacists Association
Docket: 09-1158
Issue(s): (1) 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; and (2) whether a state law reducing Medicaid reimbursement to providers may be held preempted by § 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute.

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition of respondents Independent Living Center, et al.
• Brief in opposition of respondents Lydia Dominguez, et al.
• Brief in opposition of respondents California Pharmacists Association, et al.
• Joint supplemental brief of respondents California Pharmacists Association, et al.
• Petitioner's reply

Title: Maxwell-Jolly v. Santa Rosa Memorial Hosp.
Docket: 10-283
Issue(s): (1) 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; and (2) whether a state law reducing Medicaid reimbursement to providers may be held preempted by § 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute.

Certiorari stage documents:

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

Title: 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:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition (forthcoming)
• Petitioners' reply

Title: Sheets v. Simpson
Docket: 10-458
Issue(s): (1) Whether a prison inmate is in "custody" for Miranda purposes if law enforcement officers isolate and question him about criminal conduct occurring outside the prison but impose no additional restraints or coercive pressures beyond those inherent in ordinary prison confinement; and (2) whether a police officer violates clearly established Miranda law by advising a defendant who asks him whether a polygraph examination will confirm the veracity of the defendant's statements that defendant will not have any trouble if his statements are truthful, but that he should terminate the examination and consult an attorney if he is lying.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Michigan, et al.
• Petitioner's reply

Title: Howes v. Fields
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:

• Opinion below (6th Cir.)
• Petition for certiorari
• Petitioner's reply

Full post as published by SCOTUSBLOG on January 14, 2011 (boomark / email).