CERT . PETITIONS OF PUBLIC INTEREST MARCH 27, 2009 CONFERENCE

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P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference A LAN M ORRISON S UPREME C OURT A SSISTANCE P ROJECT C E R T . P E T IT ION S OF P U B L IC I N TE R EST M A R C H 27, 2009 C O N F E R E N C E Prepared by Leah Nicholls, 2008 32009 SCAP Fellow a b o u t t h i s l i s t The Alan Morrison Supreme Court Assistance Project (SCAP) of Public Citizen Litigation Group regularly distributes this watch list to raise awareness of public interest issues presented to the U.S.

Supreme Court. SCAP monitors cert. petitions where the question presented implicates our public interest mission and there is a chance of a grant.

SCAP also offers pro bono assistance to litigants involved in some cases. Subscribe to the S.Ct. Watch List to receive an update before each Supreme Court conference.

Past conference watch lists are available in the Watch List Archives . For more information, contact Leah Nicholls, 2008 32009 Supreme Court Assistance Project ... more. less.

Fellow, at (202) 588-1000 or supremecourt@citizen.org . P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 2 W ATCH L IST C ONTENTS Issue Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Links for More Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Key Terms & Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 March 27th Conference.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Pending for Upcoming Conferences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Calls For Response.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 New CFR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pending CFR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Calls for the Views of the Solicitor General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 New CVSG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Pending CVSG.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Held/Awaiting Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Last Conference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Certiorari Denied. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Granted Cases Involving Public Citizen 2008 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 3 I SSUE I NDEX ADA Burden-Shifting. . . . . . . . . . . . . . . 15 Major Life Activity.. . . . . . . . . . . . 18 Standing.. . . . . . . . . . . . . . . . . . . . 21 American Indian Law Tribal Courts. . . . . . . . . . . . . . . . . 17 Antitrust Competitor Fraud. . . . . . . . . . . . . 33 Sports Leagues.. . . . . . . . . . . . . . . 30 Arbitration Interlocutory Appeal. . . . . . . . . 9 , 14 Public Policy Defense. . . . . . . . . . 25 Attorney's Fees "Prevailing Party".. . . . . . . . . . . . 26 Fee Enhancements.. . . . . . . . . . . . 16 Bankruptcy Law Setoff. . . . . . . . . . . . . . . . . . . . . . . 12 Civil Procedure Class Actions. . . . . . . . . . . . . . . 9 , 27 Consent Decrees. . . . . . . . . . . . . . 17 Removal. . . . . . . . . . . . . . . . . . . . . 37 Communications Regulation Broadcast Indecency. . . . . . . . . . . 34 Criminal Law Aggravated Identity Theft. . . . . . . 11 Batson Challenges. . . . . . . . . . . . . 38 Double Jeopardy. . . . . . . . . . . . . . 33 Firearm Discharge.. . . . . . . . . . . . 38 Mootness. . . . . . . . . . . . . . . . . . . . 38 Plea Agreements. . . . . . . . . . . . . . 22 Private Prosecutions. . . . . . . . . . . 28 Sentencing. . . . . 9 , 14 , 15 , 23 , 25 , 37 Speedy Trial Act.. . . . . . . . . . . . . . 12 DPPA Permitted Uses.. . . . . . . . . . . . . . . 40 Due Process Civil Commitment. . . . . . . . . . . . . 25 Evidence.. . . . . . . . . . . . . . . . . . . . 19 Foreclosure. . . . . . . . . . . . . . . . . . 41 Forfeiture.. . . . . . . . . . . . . . . . . . . 45 Prejudgment Remedies.. . . . . . . . . 26 Recusal.. . . . . . . . . . . . . . . . . . 21 , 44 Employment Law Employee Benefits. . . . . . . . . . 10 , 18 USERRA.. . . . . . . . . . . . . . . . . 16 , 17 WARN Act. . . . . . . . . . . . . . . . . . . . 8 Environmental Law CERCLA.. . . . . . . . . . . . . . . . . . . . . 7 Clean Water Act.. . . . . . . . . . . . . . 43 Standing.. . . . . . . . . . . . . . . . . . . . 36 Standing / Nationwide Injunction.. . . . . . . . . . . . . 42 ERISA Administrator Deference. . . . . . . . 31 Judicial Review. . . . . . . . . . . . . . . 18 Preemption.. . . . . . . . . . . . . . . . . . 39 False Claims Act State Audits. . . . . . . . . . . . . . . . . . 29 Federal Jurisdiction Foreign Sovereign Immunities Act. . . . . . . . . . 29 FELA Fear of Cancer.. . . . . . . . . . . . . . . 19 Fifth Amendment Takings Clause.. . . . . . . . . . 7 , 16 , 36 First Amendment E-Mail Spam. . . . . . . . . . . . . . . . . . 8 Employee Speech. . . . . . . . . . . . . . 23 Prior Restraint.. . . . . . . . . . . . . . . 11 Standing.. . . . . . . . . . . . . . . . . . . . 39 True Threat Doctrine.. . . . . . . . . . 13 Fourth Amendment Consensual Searches. . . . . . . . . . . 41 Pat-Down Search.. . . . . . . . . . . . . 44 Probable Cause. . . . . . . . . . . . . . . 33 Taser Shocks. . . . . . . . . . . . . . . . . 27 Wiretapping. . . . . . . . . . . . . . . . . . 24 P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 4 Habeas Corpus "Clearly Established". . . . . . . . . . 34 Plea Agreements. . . . . . . . . . . . . . 23 Statute of Limitations.. . . . . . . . . . 21 Sufficient Evidence.. . . . . . . . . . . . 32 Immigration Law Criminal Definitions. . . . . . . . . . . 12 Due Process.. . . . . . . . . . . . . . . . . 24 Judicial Review. . . . . . . . . . . . . 7 , 37 Stay of Removal. . . . . . . . . . . . . . . 34 Waiver of Deportation. . . . . . . . . . 11 International Law Child Abduction.. . . . . . . . . . . 13 , 30 Medicare DSH Adjustment.. . . . . . . . . . . . . . 14 Pleading Requirements. . . . . . . . . . . 32 , 39 PLRA Exhaustion. . . . . . . . . . . . . . . . . . . 41 PMPA Constructive Termination. . . . . . . 29 Preemption Cigarette Labeling.. . . . . . . . . . . . 43 FCRA. . . . . . . . . . . . . . . . . . . . . . . 30 FDCA / State Consumer Remedy.. . . . . . . . . . . . 15 , 42 Medicaid. . . . . . . . . . . . . . . . . . . . 29 Medical Marijuana. . . . . . . . . . . . 26 Medicare. . . . . . . . . . . . . . . . . . . . 40 National Bank Act. . . . . . . . . . . . . 45 Telecommunications Law.. . . . . . . 28 Prisoners 9 Rights Disclosure Statements. . . . . . . . . . 22 Public Citizen Cert. Denied.. . . . . . . . . . . . . . . . . 39 Cert. Granted.. . . . . . . . . . . . . 42 - 45 Cert. Pending.. . . . . . . . . . . 8 , 11 , 15 RFRA Religious Marijuana. . . . . . . . . . . 24 Section 1983 Gender Discrimination. . . . . . . . . 37 Municipal Liability. . . . . . . . . . . . . 8 Prosecutor Liability.. . . . . . . . . . . 20 Qualified Immunity. . . . . . . . . . . . 20 Securities Exchange Act Pleading Requirements. . . . . . . . . 19 Separation of Powers Non-Delegation Doctrine.. . . . . . . 13 Sixth Amendment Confrontation Clause.. . . . . . . 33 , 34 Special Education Tuition Reimbursement. . . . . . . . . 44 Statute of Limitations Choice of Law. . . . . . . . . . . . . . . . 18 Inquiry Notice. . . . . . . . . . . . . . . . 28 TILA Pleading Requirements. . . . . . . . . 38 Title VII Race Discrimination. . . . . . . . . . . 35 Voting Rights Act Vote Dilution. . . . . . . . . . . . . . . . . 36 P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 5 R ESOURCES L INKS FOR M ORE I NFORMATION T Supreme Court 9s Website: http://www.supremecourtus.gov . For info or status updates on a particular petition, click on the Docket Number included on this list for that petition. View the Orders List which comes out after each conference for news on all petitions here: http://www.supremecourtus.gov/orders/08ordersofthecourt.html T Alan Morrison Supreme Court Assistance Project of Public Citizen: http://www.citizen.org/litigation/SupremeCourt . SCAP Information. T SCOTUS Blog: http://www.scotusblog.com . Frequent Supreme Court Updates. T Office of Solicitor General: http://www.usdoj.gov/osg . Briefs Filed by the United States. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 6 K EY T ERMS & A BBREVIATIONS Petition for Certiorari cCert d Petition The brief filed at the Supreme Court by a party who lost in a lower federal or state court, asking the Supreme Court to grant certiorari and review the decision of the lower court. If cert is granted, the Court will hear the case. If cert is denied, the decision below stands. Petitioner The party petitioning the Supreme Court for a grant of certiorari 4who lost in the lower court and is asking the Supreme Court to overturn the lower court decision. Respondent Any party other than the petitioner, but generally the party opposing a grant of certiorari. These parties usually want the Court to deny cert. BIO Brief in Opposition The brief in opposition to certiorari is the brief filed by a respondent in response to the petitioner 9s petition for certiorari ( ccert petition d). This is the brief in which the respondent may explain why the Court should not hear the case. CFR Call For a Response Where the respondent has initially waived filing a response, after reading the petition for certiorari but before deciding whether to hear the case, the Court sometimes issues a CFR, or asks the respondent to file a brief in opposition. Conf. Conference This is the term for the meeting the Justices regularly hold regarding pending cert petitions and cases. Conference dates are listed on the current Supreme Court calendar . CVSG Call for the Views of the Solicitor General Before deciding whether to hear a case, the Court sometimes chooses to CVSG the petition. This means the Court is inviting the Solicitor General to file a brief providing the views of the United States regarding the question presented by the petition. The brief eventually filed is called an cinvitation brief. d Briefs filed this term are available here: http://www.usdoj.gov/osg/briefs/2008/2008brieftypes.html . Dist. Distributed This provides the date of the Conference for which this petition and related filings were distributed to the Justices, and the date when the Court may take action on the petition. GVR Granted, Vacated, and Remanded The Supreme Court granted, vacated, and remanded the petition, usually in light of an intervening case. Essentially, this means the Supreme Court has cancelled out the lower court 9s decision and sent the case back to that court for reconsideration. Held The Court frequently holds petitions for later consideration if they raise the same or similar questions as those presented by other petitions or granted cases. The Court will consider these petitions again later, usually after announcing a decision in another case. QP Question/s Presented The question or questions presented in a petition for the Supreme Court to decide. The Court usually does not address issues not included in the QP. Vide Occasionally, more than one party will ask the Supreme Court to hear the same case. Marking a petition cVide d recognizes that it comes from the same lower court opinion as another pending petition. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 7 M ARCH 27 TH C ONFERENCE Fifth Amendment: Takings Clause 08-567 Agripost, LLC v. Miami-Dade County (11th Cir.) BIO 2/26, reply 3/9. Amici Nat 9l Ass 9n of Home Builders 11/21, Pac. Legal Found. 11/24, Mich. State Bar 11/28. Dist. for 3/27. 1. Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank insofar as it denies property owners the right to litigation their federal causes of action in federal court, the same as all other constitutionally aggrieved citizens, and forces them to seek compensation in state court ostensibly to ripen their federal constitutional takings claims, where four Justices of this Court declared in San Remo Hotel v. City and County of San Francisco that the Williamson County rule is cmistaken d due to its lack of doctrinal underpinning and incoherent effect on federal jurisdiction? 2. Where settled Eleventh Circuit law has for decades provided that a property owner following the Williamson County rule of state court ripening litigation may creserve d federal issues for federal court trial, and in fact the Eleventh Circuit expressly so ordered in an earlier appeal of this case, can the property owner be punished for obeying such an order by having its eventual federal court suit dismissed on the basis of issue preclusion? Environmental Law: CERCLA 08-683 Cannon v. Gates (10th Cir.) BIO 2/27, reply 3/9. Dist. for 3/27. 1. Whether the federal government may assert that it has selected a removal or remedial action under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9604, by relying upon decades of on-and-off preliminary investigations without finalizing a response plan. 2. Whether section 113(h) of CERCLA, 42 U.S.C. § 9313(h), strips federal courts of jurisdiction in suits that are directed merely toward compelling the party responsible for contaminating a site with hazardous waste, in this case the federal government, to timely clean up the hazardous waste it generated, and do not attempt to delay the cleanup of the site. Immigration Law: Judicial Review 08-697 Gjidoda v. Baker (6th Cir.) BIO 2/27. Dist. for 3/27. 1. Did Congress intend to provide for federal court review of deportation orders entered before the enactment of the REAL ID Act of 2005 where such challenges were not brought until after the enactment of the Act? 2. Does the retroactive elimination of habeas review of Petitioner 9s deportation order without providing an adequate, or any, substitute violate the Suspension Clause? P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 8 Section 1983: Municipal Liability 08-704 Bolton v. City of Dallas (5th Cir.) CFR 12/23. Amicus Nat 9l Employment Lawyers Ass 9n 1/22. BIO 2/23, reply 3/6. Dist. for 3/27. 1. In an action under 42 U.S.C. § 1983, may a city or other local government body be held liable for a constitutional violation because the official who committed that violation exercised the final authority to make the decision in question? 2. In an action under 42 U.S.C. § 1983, does the existence of a written government standard forbidding a constitutional violation preclude the imposition of liability or a city or other local government body for such a violation by its officials? First Amendment: E-Mail Spam 08-765 Virginia v. Jaynes (Va.) Amici Am. Ctr. for Law & Justice 1/12, Crim. Justice Legal Found. 1/12, Alabama 1/13, U.S. Internet Serv. Provider Ass 9n 1/14. BIO 2/23, reply 3/10. Dist. for 3/27. Paul Levy of Public Citizen is assisting the respondent. Virginia Code § 18.2-152.3:1(A) prohibits an individual from falsifying his identity to circumvent e-mail security measures and send unsolicited bulk e-mail. Although the statute is constitutional as applied to commercial e-mail spam, the Supreme Court of Virginia found that it was unconstitutional as applied to hypothetical political and religious e-mail spam. Without comparing the constitutional applications to the unconstitutional applications, Virginia 9s highest court declared that the statute was substantially overbroad and, thus, facially unconstitutional. The question presented is: When confronted with a claim that a statute is substantially overbroad and, thus, facially unconstitutional, is a court required to compare the statute 9s constitutional applications to the statute 9s actual unconstitutional applications? Employment Law: WARN Act 08-812 APA Transp. Corp. v. Teamsters Local Union No. 560 (3d Cir.) BIO 2/27. Dist. for 3/27. 1. Whether the Third Circuit 9s erroneous construction of the cfaltering company d exception under the Workers Adjustment Retraining Notification Act, 29 U.S.C. § 2102(b)(1), renders the exception illusory, thereby precluding employers from obtaining essential financing, and requiring premature business closings that damage the economy and precipitate job loss. 2. Whether the Third Circuit 9s granting of summary judgment without considering evidence of cactively seeking . . . business d expunges statutory language and fundamentally misconstrues the breadth of the statutory exception. 3. Whether the Third Circuit 9s summary judgment determination usurps the factfinder 9s function and forecloses Petitioner 9s right to present material facts in its defense. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 9 Civil Procedure: Class Actions 08-934 Columbia Iron & Metal Co. v. Lincoln Elec. Co. (6th Cir.) BIO 2/26, reply 3/5. Dist. for 3/27. 1. Where a jury is instructed on two different bases for tolling the statute of limitations, one of which is clearly erroneous and the other of which is deemed acceptable, may the verdict stand because the jury ccould have d followed the acceptable instruction even though the court is unable to find that the jury did not instead follow only the erroneous instruction? 2. May a trial court omit a Rule 23(c)(2)(B) notice to absent class members in a Rule 23(b)(3) class action and thereafter substitute a partial settlement notice under rule 23(e)(1)(B) without including the admonition specified in Rule 23(c)(2)(B) that a subsequent judgment in the continuing litigation against the non-settling defendants would be binding on the class members? Arbitration: Interlocutory Appeal 08-947 Bander Family P 9ship, LP v. TowerHill Wealth Mgmt., LLC (Del.) BIO 2/27, reply 3/9. Dist. for 3/27. Does section 16(a)(2) of the Federal Arbitration Act (FAA), read in conjunction with the Supremacy Clause, gives Petitioner a right of interlocutory appeal from a state trial court 9s preliminary injunction against continuing an arbitration previously and properly commenced pursuant to an agreement that is subject to the FAA? Criminal Law: Sentencing 08-948 Anderson v. Louisiana (La.) BIO 2/23, reply 3/4. Dist. for 3/27. Louisiana law provides that after jury finds that an aggravating circumstance exists, c[a] sentence of death shall not be imposed unless the jury . . . after consideration of any mitigating circumstances, determines that the sentence of death should be imposed. d La. Code Crim. Pro. art. 905.3. In Apprendi v. New Jersey , 530 U.S. 466, 476 (2000), this Court held that cany fact (other than prior conviction) that increases the maximum penalty for a crime must be . . . submitted to a jury and proven beyond a reasonable doubt. d The Louisiana Supreme Court rejected petitioner 9s claim that Apprendi applies to the culpability determination, holding instead the jurors need nor employ any standard for determining which defendants convicted of first-degree murder and an aggravating circumstance are culpable enough to receive a death verdict. The question presented is: Whether the jury 9s determination that death should be imposed must be made beyond a reasonable doubt. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 10 Employment Law: Employee Benefits 08-962 Cent. States, Se. & Sw. Areas Pension Fund v. Gen. Materials, Inc. (6th Cir.) BIO 2/27, reply 3/13. Dist. for 3/27. 1. Whether the Court of Appeals committed an error by disregarding this Court 9s determination in Central State Pension Fund v. Central transport, Inc. , 472 U.S. 559 (1985), that the decisions of the Trustees, such as their decision in this case that the Participation Agreement they drafted obligates an employer to remit contributions until 2005 even though the collective bargaining agreement had terminated in 1993, must be reviewed under the deferential arbitrary or capricious standard. 2. Whether the Court of Appeals committed error by ignoring the conflicting holding of the Seventh Circuit in Central States Pension Fund v. Schilli Corp. , 420 F.3d 663 (7th Cir. 2005), which established that the Trustees 9 Participation Agreement does require contributions after collective bargaining agreement termination. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 11 P ENDING FOR U PCOMING C ONFERENCES Immigration Law: Waiver of Deportation 08-605 Gonzáles-Mesías v. Holder (1st Cir.) BIO 3/9. Petitioner, a lawful permanent resident, was deported for a crime he committed 23 years ago. He sought a waiver of deportation under § 212(c) of the Immigration of Naturalization Act, 8 U.S.C. § 1182(c) (repealed 1996). All the courts of appeals agree that equal protection demands that Petitioner be eligible for a waiver of deportation is a similarly situated alien would be eligible for a waiver of exclusion , had he left the country and returned. If Petitioner had been convicted of exactly the same crime under exactly the same circumstances, and subsequently left the country and returned, he would have been eligible for a waiver of exclusion. Should he, therefore, be eligible for a waiver of deportation, on the ground that it is irrational to treat him more harshly just because he never left the country? Criminal Law: Aggravated Identity Theft 08-622 United States v. Villanueva-Sotelo (D.C. Cir.) CFR 12/31. BIO 3/2. Dist. for 4/3. The federal aggravated identity theft statute prescribes a mandatory two-year term of imprisonment for any person who, dduring and in relation to d certain other specified crimes, cknowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. d 18 U.S.C. § 1028A(a)(1). The question presented is whether, in order to obtain a conviction under section 1028A(a)(1), the government must establish that the defendant knew that the cmeans of identification d in question belonged to another person. (This petition will likely be held for 08-108 Flores-Figueroa v. United States , which was granted on 10/20 and set for argument on 2/25.) First Amendment: Prior Restraint 08-636 Gen. Auto Serv. Station v. City of Chicago (7th Cir.) CFR 12/9. BIO 3/11. Bonnie Robin-Vergeer of Public Citizen is assisting the petitioner. The City of Chicago grandfathers some, but not all, lawfully established but now nonconforming outdoor signs. The grandfather status is predicated upon prior compliance with Chicago 9s former sign permitting requirement, which violated the First Amendment as an invalid prior restraint on speech. 1. Whether a municipality violates the First Amendment when, by reason of an individual 9s past exercise of his First Amendment right to ignore an unconstitutional sign permitting requirement, it prohibits the continued display of a lawfully established but now non-conforming outdoor sign. 2. Whether a municipality 9s prohibition of future speech for some speakers otherwise violates the First Amendment, when such prohibition is imposed on the sign owner or operator for having in the past engaged in a certain kind of lawful speech, an issue upon which there is a conflict between federal courts of appeal. 3. Whether an outdoor sign ordinance and a separate grandfathering provision modifying that sign ordinance are to be treated as a combined single regulation of speech for purposes of determining content-neutrality and constitutionality under the First Amendment, an issue upon which there is a circuit split. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 12 Immigration Law: Criminal Definitions 08-643 Canales-Matamoros v. Holder (11th Cir.) BIO 3/16. 1. Whether the uniform federal criminal definition for conviction of sexual abuse of a minor governs the deportation provision in Section 101(a)(43)(A) of the Immigration and Nationality Act of 1952 as amended, 8 U.S.C. § 1101(a)(43)(A), requiring removal of an alien convicted of sexual abuse of a minor. 2. Whether the rule lenity or narrow construction should be applied to resolve an ambiguity in a deportation provision that is also part of a federal criminal statute. Bankruptcy Law: Setoff 08-719 Am. Steamship Owners Mut. Prot. Indemnity Ass 9n, Inc. v. Asbestosis Claimants (2d Cir.) BIO 3/13. 1. Did the Second Circuit, in reversing the decision of the district court which had affirmed the bankruptcy court, err in denying petitioner marine indemnity insurer (Club) the proper full exercise of its judicially granted right of setoff under federal bankruptcy law, in conflict with relevant decisions of this Court? 2. In reaching its decision, did the Second Circuit, by (a) failing to state or apply any legal rule applicable to interpreting reorganization plan provisions, (b) without analyzing or accurately stating bankruptcy plan § 4.05.07(a)(iv), wrongly asserting that it cauthorized that any setoff owed by Prudential to an insurer be shared ratably among the Claimants and subtracted from each Claimant 9s individual recovery in much the same way as the deductibles . . . , d in such a way as to deny petitioner Club exercise of its adjudicated setoff right fully against the Trust when in fact subsection (iv) authorized nothing of the kind, but instead mandated that there be a ratable sharing among all affected claimants of a claim against the offset amount , i.e., the total amount previously offset by the Club; and (c) in cquoting d that plan provision exercising certain words and adding others in brackets, thus rewriting, distorting, and concealing its actual language and true meaning, in such a way as to lend spurious credence to its wrong assertion of what plan § 4.05.07(a)(iv) cauthorized, d so far depart from the accepted and usual course of judicial proceedings as to call for an exercise of this Court 9s supervisory power? Criminal Law: Speedy Trial Act 08-728 Bloate v. United States (8th Cir.) BIO 2/4, reply 2/18. Record req. 2/23. The Speedy Trial Act, 18 U.S.C. § 3161 et seq. , requires that a criminal defendant be tried within 70 days of indictment or the defendant 9s first appearance in court, whichever is later. In calculating the 70-day period, 18 U.S.C. § 3161(h)(1) automatically excludes cdelay resulting from other proceedings concerning the defendant, including but not limited to * * * (D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion d (emphasis added). The question presented, on which the courts of appeals are divided, is whether time granted to prepare pretrial motions is excludable under § 3161(h)(1). P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 13 Separation of Powers: Non-Delegation Doctrine 08-751 County of El Paso v. Napolitano (W.D. Tex.) Amicus City of Eagle Pass 1/12. BIO 3/13. On April 3, 2008, the Secretary of Homeland Security waived the application of thirty-seven federal statutes to activities relating to the construction of the border fence along nearly 500 miles of the United States 9 border with Mexico. The Secretary 9s orders also purported to preempt cstate, or other laws, regulations and legal requirements of, deriving from, or related to the subject of d the waived federal statutes. The Secretary claimed authority for these orders under section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act, as amended, which grants the Secretary cauthority to waive all legal requirements such Secretary, in such Secretary 9s sole discretion, determined necessary to ensure expeditious construction of the barriers and roads d along the United States 9 border. 8 U.S.C. § 1103 note. Section 102(c) forecloses judicial review of the Secretary 9s waivers except for actions brought in federal district court alleging violations of the Constitution of the United States. A district court 9s decision may be reviewed only through a petition for writ of certiorari to this Court. The questions presented are: 1. Whether the grant of authority to the Secretary of Homeland Security to cwaive all legal requirements d necessary d to ensure rapid construction of a border fence, with no provision for judicial review to test the statutory and factual basis of the Secretary 9s waiver orders, is an unconstitutional delegation of legislative power. 2. Whether a general delegation of authority to cwaive all legal requirements d is sufficient to permit the Secretary of Homeland Security to declare preempted every state and local law crelated to d the thrity-seven waived federal statutes. First Amendment: True Threat Doctrine 08-757 Parr v. United States (7th Cir.) BIO 3/13. 1. Whether the ctrue threat d doctrine, as articulated in Virginia v. Black , 538 U.S. 343 (2003), requires a speaker to have a subjective intent to threaten in order for the speech to be constitutionally proscribable under the First Amendment, or whether the speech need only be objectively threatening. 2. Whether, under the First Amendment, the government may introduce testimonial evidence of prior statements and actions unknown to the recipient of the alleged threat in order to establish a subjective intent to cthreaten d? International Law: Child Abduction 08-775 Duran v. Beaumont (2d Cir.) CFR 2/11. BIO 3/13. 1. Should the Supreme Court resolve the cirucit split between the Second Circuit, on one hand, and the Fourth and Tenth Circuits, on the other hand, regarding whether a foreign sovereign 9s statement of its own law, provided pursuant to a duly-ratified treaty, is entitled to deference? 2. Is Supreme Court review warranted to correct the Second Circuit 9s disregard of this Court 9s precedents requiring deference to a foreign sovereign 9s authoritative interpretation of its own domestic law? 3. Is Supreme Court review warranted because the uncertainty caused by the circuit split could hamper international efforts to combat inter-county child abduction? (This petition may be held for 08-645 Abbott v. Abbott , in which the Court requested the views of the Solicitor General on 1/21.) P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 14 Criminal Law: Sentencing 08-779 Wittig v. United States (10th Cir.) CFR 1/14. BIO 3/16. 1. Whether, as the Court left unresolved in Kimbrough v. United States , appellate courts should engage in ccloser review . . . when the sentencing judge varies from the Guidelines based solely on the judge 9s view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case. d ___ U.S. ___, 128, S.Ct. 558, 575 (2007) (internal quotation marks omitted). 2. Whether the directive in 18 U.S.C. § 3553(a)(6) for district courts to avoid unwarranted sentencing disparities is applicable to codefendants within the same case or confined to disparities between similarly situated defendants nationwide. (This case may be granted, vacated, and remanded in light of 08-5721 Spears v. United States , in which a per curiam opinion was issued 1/21.) Arbitration: Interlocutory Appeal 08-816 Renasant Bank v. Kimberlin (6th Cir.) CFR 2/5. BIO 3/9. Section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4, provides that c[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement may petition any United States district court . . . for an order directing that such arbitration proceed . . . in accordance with the terms of the agreement. d Section 16(a)(1)(B) of the FAA, 9 U.S.C. § 16(a)(1)(B), provides that can appeal may be taken from an order d of a district court cdenying a petition under section 4 of this title to order arbitration to proceed. d The questions presented are: 1. Whether section 16(a)(1)(B) of the FAA provides appellate jurisdiction over an appeal from an order denying a petition under section 4 to compel arbitration of claims involving non-signatories to an arbitration agreement. 2. Whether section 4 of the FAA allows a district court to issue an order compelling arbitration of claims against a non-signatory to an arbitration agreement where the non-signatory can otherwise enforce the arbitration agreement under principles of contract or agency law, including equitable estoppel. (This petition will likely be held for 08-146 Arthur Andersen LLP v. Carlisle , which was granted on 11/7 and argued on 3/3.) Medicare: DSH Adjustment 08-818 Adena Reg 9l Med. Ctr. v. Johnson (D.C. Cir.) BIO 3/2, reply 3/17. Dist. for 4/3. In calculating the Medicare disproportionate share hospital (DSH) adjustment, the Medicare statute directs the Secretary of Health and Human Services to count days attributable to patients who are celigible for medical assistance under a State plan approved under [Title XIX of the Social Security Act, which establishes the Medicaid program]. d 42 U.S.C. § 1395ww(d)(5)(F)(vi)(II) (the cMedicaid Low Income Proxy d). The question presented, on which the federal courts of appeals are in conflict, is whether the Medicaid Low Income Proxy requires the inclusion of all patient days attributable to patients who are eligible for medical treatment under an approved State Medicaid plan or only those patient days for which a hospital actually receives payment from the Medicaid program ( i.e. Medicaid cpaid d days). P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 15 Criminal Law: Sentencing 08-822 McLaughlin v. Missouri (Mo.) BIO 3/6, reply 3/15. Dist. for 4/3. Missouri law requires the sentencing jury to determine that mitigating evidence weighs less than aggravating evidence before a person convicted of first-degree murder can be eligible for a possible death sentence. Nonetheless, in petitioner 9s case, the Missouri Supreme Court held that the defendant must bear the burden of persuasion at the weighing step. Missouri is the only state in the country that requires the defendant to demonstrate the sufficiency of the mitigating evidence to a unanimous jury. This gives rise to the following two questions: 1. Whether the rule announced in Apprendi v. New Jersey , 530 U.S. 466, 476 (2000), that cany fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . must be submitted to a jury and proved beyond a reasonable doubt, d applies to the weighing of aggravating and mitigating evidence at the penalty phase of a capital trial. 2. Whether Missouri law violates the Eighth and Fourteenth Amendments by requiring the defendant to carry the burden of demonstrating to a unanimous jury that mitigating evidence outweighs aggravating evidence. ADA: Burden-Shifting 08-873 Grubb v. Sw. Airlines (5th Cir.) BIO 3/13. This court recently repudiated burden-shifting in an ADEA case ( Mescham Knolls Atomic Power Laboratory , 128 S. Ct. 2395), citing the lack of congressional intent that traditional burdens of proof should be shifted. Yet , the issue remains unsettled as to whether or not the court-created McDonnell-Douglass Corp. v. Green , (411 U.S. 792) burden-shifting protocol should continue to be utilized when courts decide FMLA and ADA cases. Numerous circuit courts have rejected the use of burden shifting in FMLA entitlement/interference cases and ADA reasonable accommodation cases. Yet other circuit courts, including the Fifth Circuit below, continue to utilize the McDonnell-Douglass burden-shifting protocol and its progeny for FMLA entitlement/interference cases and ADA reasonable accommodation cases. This Petition addresses the question of whether or not this Court should decide the propriety of the continued application of burden shifting under McDonnell-Douglass and its progeny for FMLA and ADA cases in general, and FMLA entitlement/interference cases and ADA reasonable accommodation cases in particular. Preemption: FDCA/State Consumer Remedy 08-889 Tri-Union Seafoods, LLC v. Fellner (3d Cir.) CFR 2/2. Amicus Nat 9l Fisheries Inst. 2/17, Chamber of Commerce of U.S. 3/3. BIO 3/20. Adina Rosenbaum, Brian Wolfman, and Allison Zieve of Public Citizen are counsel for the respondent. 1. Whether state-law tort claims based upon failure to warn of the risks of methylmercury in tuna fish products are preempted by the Federal Food, Drug, and Cosmetics Act and regulatory actions of the Food and Drug Administration, including a written determination that state-law warning requirements concerning methylmercury in tuna products are preempted by federal law and denial of a petition to require such warnings. 2. Whether a cpresumption against preemption d applies in conflict preemption cases. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 16 Employment Law: USERRA 08-965 Metro. Gov 9t of Nashville & Davidson County v. Petty (6th Cir.) BIO 3/2, reply 3/17. Dist. for 4/3. 1. Whether the Sixth Circuit erred in holding that the Uniform Services Employment and Reemployment Rights Act (USERRA) prohibits employers 4even employers in safety-sensitive fields like local law enforcement 4from taking steps to ensure that returning veterans are qualified to resume their jobs before returning them to work. 2. Whether a returning veteran is cqualified d for a particular position if he or she is physically capable of performing the applicable job duties, as the Sixth Circuit held in the instant case, or whether cqualified d means mentally, physically, and temperamentally capable of performing the essential job functions, as the First and Second Circuits have held? Fifth Amendment: Takings Clause 08-966 Ohio Midland, Inc. v. Proctor (6th Cir.) BIO of Norfolk S. Ry. 2/24. Dist. for 4/3. 1. Does a cause of action for a per se permanent physical taking of private property by the government, without just compensation in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, accrue when government first temporarily takes the property, or when the owner is creasonably on notice d the taking may be permanent, or when the taking actually becomes permanent and the owner knows or should know it is permanent? 2. Where Congress reserved to itself the authority to calter, amend, or repeal d an act granting its consent to cconstruct, maintain and operate d a bridge over navigable waters of the United States and later delegated allo of its reserved authority to an administrative agency of the executive branch, and where Congress further provided that any deviation from approved bridge plans is unlawful cunless the modification of such plans has previously been submitted to and received the approval of d the administrative agency, does the adjudication of a private contract claim that the bridge must be removed require a prior determination of whether the bridge must be removed, by the administrative agency to which Congress delegated all of its reserved authority? Attorney 9s Fees: Fee Enhancements 08-970 Perdue v. Kenny A. (11th Cir.) BIO 3/4. Dist. for 4/3. 1. Can a reasonable attorney 9s fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation? 2. Is an enhancement to the lodestar based on quality of representation and results obtained contrary to this Court 9s decision in Pennsylvania v. Delaware Valley Citizens 9 Council for Clean Air , 478 U.S. 546 (1986), and City of Burlington v. Dague , 505 U.S. 557 (1992), particularly after the lodestar has been reduced for excessive hours billed? P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 17 Civil Procedure: Consent Decrees 08-971 Ricci v. Patrick (1st Cir.) BIOs 2/18, 3/4, reply 3/16. Amicus Voice of the Retarded 2/25. Dist. for 4/3. 1. Should any deference be given to the interpretation of a consent decree or any order issued thereunder by a district court which negotiated and fashioned the consent decree and supervised and administered the decree for many years, as the Sixth, Seventh, Eighth, and Ninth Circuits have held, as opposed to the decisions of the First Circuit, in this case, and the Second, Third, Fifth, Tenth, Eleventh, and D.C. Circuits which grant no deference to such an interpretation? 2. Did the First Circuit err in refusing to give any deference to an order issued under a consent decree by a district court who fashioned, supervised, and administered a consent decree for over thirty years in public interest, institutional reform litigation? 3. Should deference be given to a decision of the district court interpreting an order issued by it under a consent decree when such decision is abased upon further factual findings made by the district court? Employment Law: USERRA 08-973 Townsend v. Univ. of Alaska (9th Cir.) BIO 3/3. Dist. for 4/3. The Ninth Circuit dismissed the Appellant 9s claim for lack of subject matter jurisdiction. The Court held that reading the provision in 38 U.S.C. § 4323(b)(2) that c[a USERRA] action may be brought in a State court of competent jurisdiction in accordance with the laws of the State d in conjunction with the Eleventh Amendment 9s sovereign immunity provisions effectively limited such an action to State court. The question presented is whether the Ninth Circuit erred in concluding that Congress did not intend to provide an optional right of action in federal district court for USERRA actions brought by private individuals against state employers and that such actions by private individuals against state employers are thus barred by the Eleventh Amendment 9s sovereign immunity provisions. American Indian Law: Tribal Courts 08-985 Coushatta Tribe of La. v. Meyer & Assocs., Inc. (La.) BIO 3/5. Dist. for 4/3. Dicta from this Court 9s previous decisions suggest that state courts are required to defer to tribal courts for an original determination of jurisdiction, yet there has been no explicit holding from this Court on the issue. The state courts have split on whether they are bound to follow the same analysis as the federal courts when Indian tribes appear before them with issues of tribal law, and therefore these are the questions presented: 1. Are state courts required to apply and follow the Tribal Exhaustion Doctrine, and, in this case, should that Louisiana Supreme Court have given the Coushatta Tribal Court the first opportunity to interpret Coushatta law? 2. Can a Native American Tribe be forced to litigate claims in a state court when an ostensible waiver of sovereign immunity is not valid under that tribe 9s law? P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 18 ERISA: Judicial Review 08-989 Leonard v. Educators Mut. Life Ins. Co. (3d Cir.) BIO 3/6. Dist. for 4/3. Where the administrator of an ERISA benefit plan fails to exercise discretion in an eligibility determination, must the district court review a claim brought pursuant to 29 U.S.C. § 1132 de novo , in light of this Court 9s holdings in Firestone Tire & Rubber Co. v. Bruch and Aetna Health Inc. v. Davila ? Employment Law: Employee Benefits 08-991 White v. Coca-Cola Co. (11th Cir.) BIO 3/6. Dist. for 4/3. 1. Whether an employer has a conflict of interest when it both funds a welfare plan and has discretionary authority to interpret the plan if the employer periodically funds an irrevocable trust and funding is optional (not fixed as to amount or time of payment), or when the employer retains liability (if the trust has insufficient assets)? 2. In interpreting a welfare plan 9s ambiguous language, do administrators act unreasonably by ignoring choice of law provisions? ADA: Major Life Activities 08-1013 Kellogg v. Energy Safety Servs., Inc. (10th Cir.) BIO 3/4. Dist. for 4/3. In Wyoming, a rural state, is driving a major life activity under the Americans with Disabilities Act and the ADA Amendments Act of 2008, 42 U.S.C. § 12101 et seq. ? The Tenth Circuit 9s decision that driving is not a major life activity is inconsistent with the developing law in this Court, other circuits, and the ADA Amendments Act of 2008. Statute of Limitations: Choice of Law 08-1019 Hilao v. Revelstoke Investment Corp., Inc. (9th Cir.) BIO 3/10, reply 3/17. 1. Whether federal law, not state law, determines when a federal judgment on a federal cause of action accrues so as to commence the running of a state law limitations period for enforcement where: (a) the Court of Appeals 9 interpretation is directly contrary to this Court 9s opinion in Borer v. Chapman , 119 U.S. 587 (1887); and (b) the Court of Appeals 9 interpretation directly conflicts with the ruling of two other circuits. 2. Whether, since the question of the proper interpretation of the Hawai 9i statute has now been certified to and accepted for decision by the Hawai 9i Supreme Court (and briefing is almost complete), this Court should defer or hold consideration of this Petition until the Hawai 9i Supreme Court issues its opinion on that critical question of law? 3. Whether this Court should vacate and remand this action to the Court of Appeals since that Court plainly erred in not finding that the Class 9s final judgment was not entered in the District Court pursuant to FRCP 58 until December 6, 1995, less than ten years before the judgment was transferred to Texas? P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 19 Securities Exchange Act: Pleading Requirements 08-1021 Gilead Sci., Inc. v. St. Clare (9th Cir.) BIO 3/16. Amici Biotech. Indus. Org., Wash Legal Found., Nat 9l Ass 9n of Mfrs., Former SEC Comm 9rs, Civ. Justice Ass 9n of Cal., Tech. Network 3/16. Whether a plaintiff in a cfraud on the market d case under Section 10(b) of the Securities Exchange Act must plead facts with sufficient particularity to support a reasonable, non-speculative belief that the plaintiff ultimately can prove loss causation. Due Process: Evidence 08-1033 5634 E. Hillsborough Ave., Inc. v. Hillsborough County (11th Cir.) BIO 3/16. 1. Has the opinion of the Eleventh Circuit below, and the other judicial opinions throughout the nation that have misinterpreted or misapplied the decision in City of Los Angeles v. Alameda Books, Inc. , 525 U.S. 425 (2002), operated as a denial of due process by depriving a party the right in a dispute, constitutional or otherwise, to put on evidence , addressing the truth or falsity of a fact in dispute? 2. Does the confusion in the application of the burden shifting evidentiary process set forth in Alameda Books justify certiorari review? 3. Can the courts apply a differential summary judgment standard and evaluate countervailing evidence and testimony at the summary judgment stage in upholding regulations affecting a First Amendment protected form of business, and deny due process in this one isolated context? FELA: Fear of Cancer 08-1034 CSX Transp., Inc. v. Hensley (Ct. App. Tenn.) BIO 3/16. In Norfolk & Western Railway Co. v. Ayers , 538 U.S. 135 (2003), the Court held that, under the Federal Employers 9 Liability Act, 45 U.S.C. §§ 51 360, plaintiff may cseek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages, d with the cimportant d qualification that the plaintiff must cprove that his alleged fear is genuine and serious. d 538 U.S. at 157. The Court also identified a number of cverdict control devices, d including, con a defendant 9s request, a charge that each plaintiff must prove any alleged fear to be genuine and serious. d Id. at 159 n.19. The question presented is whether the Tennessee Court of Appeals erred in holding that a defendant is not entitled to a jury instruction that the plaintiff must prove his alleged fear of cancer to be cgenuine and serious. d P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 20 Section 1983: Qualified Immunity 08-1037 Roberts v. Torres (9th Cir.) BIO 3/10. In Hunter v. Bryant , 502 U.S. 224 (1991), this Court held the creasonable jury d standard traditionally applicable in a Rule 56 motion for summary judgment had no bearing on a qualified immunity determination because cit routinely placed qualified immunity in the hands of the jury dand with qualified immunity cthe court should ask whether the agents acted reasonably under settled in the circumstance, not whether another reasonable, or more reasonable interpretation of the events could be constructed five years after the fact. d Id. at 227 328. cThe relevant, dispositive inquiry in determining whether it would be clear to a reasonable officer that his conduct was unlawful in the situation . . . . d Saucier v. Katz , 533 U.S. 194, 202 (2001), rev 9d in part Pearson v. Callahan , ___ S. Ct. ___ (2009). When qualified immunity is asserted in a Rule 50 motion for judgment as a matter of law, does the creasonable jury d standard called for by Rule 50 trump the legal inquiry called for by qualified immunity? Section 1983: Prosecutor Liability 08-1065 Pottawattamie County v. Harrington (8th Cir.) BIO 3/17. Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant 9s csubstantive due process d rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 21 C ALLS F OR R ESPONSE N EW CFR Habeas Corpus: Statute of Limitations 08-917 McSwain v. Davis (6th Cir.) CFR 3/18, due 4/17. Whether, in order to be entitled to an evidentiary hearing to determine if a habeas petitioner 9s mental illness prevented her from meeting the one-year limitations period instituted by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d), it is sufficient that a habeas petitioner demonstrates the existence of such a mental condition, as the Third and Ninth Circuits have held, or whether a petitioner must also meet additional pleading and evidentiary requirements, as the Sixth Circuit held below. ADA: Standing 08-993 Best Western Encina Lodge & Suites v. D 9Lil (9th Cir.) CFR 3/19, due 4/20. Whether the Ninth Circuit erred in holding that a plaintiff has standing to assert an Americans with Disabilities Act claim solely for injunctive relief against a hotel even though the district court found that the plaintiff had not proven any intent to return to the hotel at the time she filed her complaint and that she had filed numerous complaints with similar allegations and had never returned to those hotels. Due Process: Recusal 08-1017 Bd. of Comm 9rs for the Orleans Levee Dist., Parish of Orleans v. Laurendine (Civ. Dist. Ct. Orleans Parish) CFR 3/18, due 4/17. Respondents instituted this litigation against the Orleans Levee District (OLD), alleging design, construction, and maintenance failures in levees that were breached during Hurricane Katrina. Respondents sought class certification in state district court for all area residents and property owners who were damaged by flooding caused by these levee failures. The wife and two sons of the allotted judge, the Honorable Kern Reese, each filed complaints against OLD in the U.S. District Court for the Eastern District of Louisiana, alleging that OLD was negligent in various respects for the levee failures, and that the home occupied by Judge and Mrs. Reese, as well as each son 9s individual home, was flooded as a result thereof. OLD filed a motion to recuse Judge Reese, which was re-allotted to Judge Michael Bagneris for hearing. However, Judge Bageris and his wife similarly fled a complaint against OLD in the U.S. District Court, seeking compensation for property damage to their New Orleans home as a result of levee failures during Hurricane Katrina. Therefore, OLD sought Judge Bagneris 9s recusal from deciding its motion to recuse judge Reese. Judge Bengeris refused to recuse himself and denied the motion to recuse Judge Reese. Th question presented is: Whether Judge Bagneris 9s failure to recuse Judge Reese violated the Due Process Clause of the United States Constitution, when Judge Reese was directly an substantially impacted by the flooding, and the outcome of this case will have a significant influence over Judge Reese 9s wife 9s and sons 9 cases against OLD. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 22 Criminal Law: Plea Agreements 08-1018 Ohio v. Veney (Ohio) CFR 3/19, due 4/20. 1. This criminal defendant approved a written plea in which he acknowledged his understanding of various constitutional rights and in which he waived those rights, and he further acknowledged in open court that he approved the written plea and had reviewed his constitutional rights with his counsel. Did the constitutional standard under Boykin v. Alabama , 395 U.S. 238 (1969), require that the trial court go further and provide specific oral advisements and obtain specific oral waivers regarding such constitutional rights? 2. The Boykin Court held that the record of proceedings must affirmatively disclose the waiver of those constitutional rights, i.e. , the right against compelling self-incrimination, the right to jury trial, and the right to confront witnesses. Should the list of three Boykin rights be expanded to includes the constitutional right to require proof beyond a reasonable doubt? 3. Assuming that an oral advisement is constitutionally required, does the failure to give such an advisement require automatic reversal when other parts of the trial-court record, including the defendant 9s written plea, show that the defendant was aware of the right to proof beyond a reasonable doubt and was waiving that right? P ENDING CFR Prisoners 9 Rights: Disclosure Statements 08-327 Arizona v. Tuzon (9th Cir.) CFR 10/21, due 11/20. Dist. for 1/9. Re-listed for 1/16. Re-listed for 1/23. Re-listed for 2/20. Re-listed for 2/27. Re-listed for 3/6. CFR from the D.C. Ariz. 3/9, due 4/8. In suits filed pro se by inmates against prison employees and officials, judges of the United States District Court for the District of Arizona habitually issue orders requiring the Defendants, their attorneys, and unnamed prison officials to investigate the inmates 9 allegations and to file with the court and serve on the plaintiffs a verified report informing them of the facts learned from the investigation and identifying what responses the Department of Corrections would make to the allegations. The questions presented are: 1. A rule of civil procedure promulgated by this Court requires the parties in suits to exchange disclosure statements, but it specifically exempts suits filed by pro se prison inmates. Do the district judges have the power to enact their own rule requiring defendants in pro-se inmate suits to provide disclosure statements? 2. The Prison Litigation Reform Act requires inmates to exhaust administrative remedies before filing suit. The district judges 9 orders require prison officials to respond to inmates 9 allegations, even when their claims would be barred because they failed to exhaust administrative remedies available under prison grievance procedures. Does the district court have the power to abrogate the PLRA? 3. Under separation-of-powers principles, the judicial branch cannot co-opt the executive branch involuntarily into performing tasks. Similarly, under federalism principles, a federal court cannot co-opt a state government agency. Do district judges exceed powers by ordering state prison officials to investigate and report to the court on inmates 9 unproven allegations? 4. Due process requires courts to act neutrally and fairly toward the parties. The district court in these cases requires only the defendants 4and related officials of the Arizona Department of Corrections, who are not parties to the suit 4to conduct an investigation and disclose facts, with no similar requirement made of the inmates-Plaintiffs. Do these unilateral orders violate the due-process rights of the Defendants? P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 23 Criminal Law: Sentencing 08-712 McElroy v. Texas (Tex. Ct. Crim. App.) CFR 1/21, due 3/23 (ext.). 1. Whether United States v. Ruiz , 536 U.S. 622 (2002), authorizes the prosecution to suppress favorable evidence material to punishment where the defendant pleads guilty without an agreed recommendation on punishment. 2. Whether undisclosed evidence that would have impeached the complainant 9s statements contained in the pre-sentence report is material to punishment. First Amendment: Employee Speech 08-720 Callahan v. Fermon (7th Cir.) CFR 1/21, due 5/1 (ext.). In Garcetti v. Cellabos , 547 U.S. 410 (2006), this Court concluded that the First Amendment does not protect a government employee from discipline when speech is made pursuant to his cofficial duties, d but did not outline how the scope of the duties was to ascertained. The questions presented are: 1. In reasonably disputed cases, is the question of whether the speech of an employee is made pursuant to his employment duties a pure question of law or is it a mixed question of law and fact that should be considered by a finder of fact? 2. What are the proper criteria to consider when analyzing whether speech is made pursuant to an employee 9s cofficial duties d? 3. When a governmental employer has a standard policy suggesting that an employee should report wrongdoing, is an employee necessarily acting pursuant to his job duties when he reports the criminal wrongdoing of a supervisor to an independent entity? Habeas Corpus: Plea Agreements 08-763 Mabry v. United States (3d Cir.) CFR 1/9, due 4/10 (ext.). In this case, the Third Circuit concluded that the holding of Roe v. Flores-Ortega , 528 U.S. 470 (2000) 4that a criminal defense lawyer is constitutionally ineffective if he does not file a notice of appeal when his client instructs him to do so 4does not apply when the client has entered into a plea agreement with a waiver of the right to appeal and to collaterally attack the sentence. The Third Circuit expressly rejected the contrary holdings of the Second, Fourth, Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits and announced that it cwill part ways with the approach taken by the majority of the courts of appeals. d The Seventh Circuit has now agreed with the Third Circuit. The question presented is whether the holding in Roe v. Flores-Ortega is applicable in a habeas case where the defendant has entered into a plea agreement that includes a waiver of the right to take an appeal or to collaterally attack the sentence. P UBLIC C ITIZEN L ITIGATION G ROUP C ERT . P ETITIONS OF P UBLIC I NTEREST Alan Morrison Supreme Court Assistance Project March 27, 2009 Conference http://www.citizen.org/litigation/supremecourt/ 24 RFRA: Religious Marijuana 08-777 Olsen v. Holder (8th Cir.) CFR 1/29, due 4/1 (ext.). Petitioner Olsen brought this action after this Court 9s decision in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal , 546 U.S. 418 (2006), seeking a declaration that he is allowed, under the Religious Freedom Restoration Act (RFRA) and the United States Constitution, to use marijuana in the course of his religious worship and for appropriate injunctive relief against law enforcement officials of the United States and Iowa. The courts below dismissed Petitioner 9s claims on the basis of collateral estoppel. The questions presented are: 1. Did the lower courts err in applying collateral estoppel to Petitioner 9s claims under RFRA and the Equal Protection Clause where the prior decisions relied upon for the estoppel were decided before the enactment of RFRA and applied legal principles that conflict with this Court 9s decision in O Centro Espirita ? 2. Did the lower courts err in ruling that the state and federal Controlled Substances Acts are cgenerally applicable d laws for purposes of the First Amendment 9s Free Exercise Clause, even though those laws provide exemptions for particular religious and non-religious uses? Immigration Law: Due Process 08-785 Agasino v. Holder (9th Cir.) CFR 2/11, due 4/13 (ext.). 1. Whether the Ninth Circuit Court of Appeals violated Due Process of Law under the Fifth Amendment in failing to consider arguments respecting Equal Protection in rehearing Petitioner 9s case when those arguments had been the basis for its original decision. 2. Whether it violates Equal Protection of law guaranteed through the Fifth Amendment 9s due process clause to preclude an individual from seekin

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