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This edition of ?Petitions to watch? features cases up for consideration at the Justices? February 18 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.

Note: Goldstein, Howe & Russell represents the petitioner in this case, which is listed without regard to its likelihood of being granted.

Title: Zuress v. Donley
Docket: 10-374
Issue(s): In what circumstances are dual-status technicians, who perform civilian roles within military departments, protected by federal statutes prohibiting employment discrimination?

Certiorari stage documents:

• Opinion below (9th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief for the American Association for Justice and Equal Rights Advocates

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Title: Exide Technologies v. EnerSys Delaware, Inc.
Docket: 10-422
Issue(s): Whether a contract that imposes continuing obligations on both parties, and which includes obligations that are burdensome and disadvantageous to the estate, is an "executory contract" subject to rejection under section 365(a) of the Bankruptcy Code.

Certiorari stage documents:

• Opinion below (3d Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

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Title: Bauer v. Shepard
Docket: 10-425
Issue(s): Whether various canons of the Indiana Code of Judicial Conduct that restrict speech and/or activities of state judges and judicial candidates violate the Constitution.

Certiorari stage documents:

• Opinion below (7th Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply

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Title: Al-Odah v. United States
Docket: 10-439
Issue(s): (1) Whether the Federal Rules of Evidence and 28 U.S.C. § 2246 limit the admissibility of hearsay in a habeas corpus case challenging indefinite imprisonment, potentially for life; (2) whether a preponderance of the evidence standard, rather than a clear and convincing evidence standard, is sufficient under the Due Process Clause of the Constitution and 28 U.S.C. § 2241 to support a ruling in favor of indefinite imprisonment, potentially for life.

Certiorari stage documents:

• Opinion below (D.C. Cir.) (forthcoming)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of the National Association of Criminal Defense Lawyers

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Title: Arizona Cattle Growers’ Ass’n v. Salazar
Docket: 10-454
Issue(s): 1) Whether the Fish and Wildlife Service (FWS) was required to analyze and consider all of the economic impacts that result from designating a particular area as a "critical habitat" under § 4(b)(2) of the Endangered Species Act, including impacts that also may be related to the species being listed as "threatened" or "endangered"; and 2) whether it is lawful for a court to substitute its own rationale for the rationale provided by the FWS to affirm the agency's determination that a particular area, designated as a "critical habitat," is occupied by a threatened or endangered species.

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition for the federal respondents
• Brief in opposition for the Center for Biological Diversity
• Amicus brief of the Association of California Water Agencies
• Amicus brief of New Mexico Cattle Growers' Association et al.

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Title: Schering Corp. v. Kuzinski
Docket: 10-459
Issue(s): (1) What deference is due to an agency interpretation of its own regulations when the interpretation departs from the agency?s prior position; and (2) whether the Second Circuit erred in its construction of the outside sales exemption of the Fair Labor Standards Act.

Certiorari stage documents:

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

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Title: Novartis Pharmaceuticals Corp. v. Lopes
Docket: 10-460
Issue(s): (1) Whether the Second Circuit's holding that highly-paid pharmaceutical sales representatives are not covered by the FLSA's administrative exemption or the outside sales exemption, is contrary to the statute's text, purpose, and DOL's long-standing regulations; and (2) whether an agency's break with prior interpretations of its regulations, advanced for the first time in an amicus brief, is entitled to heightened deference under Auer v. Robbins.

Certiorari stage documents:

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the U.S. Chamber of Commerce
• Amicus brief of Pharmaceutical Research and Manufacturers of America
• Petitioner's reply

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Title: Connecticut v. Duncan
Docket: 10-489
Issue(s): Whether the doctrine of prudential ripeness can bar a state from obtaining a timely judicial determination of its obligations under Spending Clause legislation.

Certiorari stage documents:

• Opinion below (2d Circuit)
• Petition for certiorari
• Brief in opposition of respondent Arne Duncan
• Petitioners' reply

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Title: Utah v. Ott
Docket: 10-490
Issue(s): (1) Whether the Court should overrule the remaining part of Booth v. Maryland holding that the Eighth Amendment erects a per se bar against a victim's family members' characterizations and opinions about the crime, defendant, and appropriate sentence; and (2) to the extent that any part of Booth survives, whether it applies to a sentencing proceeding in which death is not option.

Certiorari stage documents:

• Opinion below (Supreme Court of Utah)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the National Crime Victim Law Institute
• Petitioner's reply

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Title: Pacific Operations Offshore, LLP v. Valladolid
Docket: 10-507
Issue(s): When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?

Certiorari stage documents:

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

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Title: Golan v. Holder
Docket: 10-545
Issue(s): (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

Certiorari stage documents:

• Opinion below (10th Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief on behalf of Internet Archive
• Amicus brief of the Conductors Guild

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Title: Osage Nation v. Irby
Docket: 10-537
Issue(s): (1) Whether, in determining whether Congress "disestablished an Indian reservation," pursuant to Solem v. Bartlett (1984), courts are limited to the statutory text, legislative history, and views of the Executive Branch or can instead also consider other external indicia; and (2) whether the lower court properly ruled that a Native American tribe's reservation had been "disestablished."

Certiorari stage documents:

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the National Congress of American Indians
• Petitioner's reply

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Title: McCreary County, Kentucky v. ACLU of Kentucky
Docket: 10-566
Issue(s): (1) Whether factors such as the passage of time and a change in governmental decision-makers suffice to permit a display that included the Ten Commandments, when an earlier display that included the Ten Commandments had been deemed unconstitutional; (2) whether the Establishment Clause is violated by a privately donated display on government property that includes both secular documents and the Ten Commandments; (3) whether the Lemon test should be overruled and a new test for Establishment Clause purposes should be established.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply

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Title: Home Builders Ass’n of Northern California v. United States Fish and Wildlife Service
Docket: 10-605
Issue(s): Whether, under section 4 of the Endangered Species Act, the government must analyze all of the economic impacts of a ?critical habitat? designation (regardless of whether the impacts are co-extensive with, or cumulative of, other causes), or instead only those impacts for which ?critical habitat? designation is a ?but for? cause.

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition of federal respondents
• Brief in opposition of Defenders of Wildlife et al.
• Petitioners' reply

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Title: City of New York v. The Permanent Mission of India to the United States
Docket: 10-627
Issue(s): 1) Whether, in determining whether Congress authorized the Secretary of State ("Secretary") to preempt traditional state taxing powers by designating certain exemptions from state and local property tax laws under The Foreign Missions Act, 22 U.S.C. §§ 4301 et seq. ("FMA"), courts should defer to the Secretary's own interpretation of her FMA powers; 2) whether the FMA authorizes the Secretary's preemption of state and local property tax laws; and 3) whether upholding the Secretary's creation and conferral of retroactive tax exemptions under the FMA is contrary to Supreme Court precedent.

Certiorari stage documents:

• Opinion below (2d Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the International Municipal Lawyers Association, et al.
• Petitioner's reply (forthcoming)

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Title: Wine Country Gift Baskets.com v. Steen
Docket: 10-671
Issue(s): Whether the Twenty-first Amendment overrides the Commerce Clause and allows States to discriminate against out-of-state businesses in the sale of alcoholic beverages.

Certiorari stage documents:

• Opinion below (5th Cir.)
• Petition for certiorari
• Brief in opposition of Glazer?s Wholesale Drug Co. and Republic Beverage Co.
• Petitioners' reply
• Amicus brief of Economists et al.
• Amicus brief of the Specialty Wine Retailers of America

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Note: Note: Goldstein, Howe & Russell represents the petitioner in this case.

Title: Barbour v. Louisiana
Docket: 10-689
Issue(s): Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a non-unanimous jury verdict.

Certiorari stage documents:

• Opinion below (Court of Appeal of Louisiana, Fourth Circuit)
• Petition for certiorari
• Brief in opposition (forthcoming)
• Amicus brief of the Houston Institution for Race and Justice
• Amicus brief of the American Bar Association
• Amicus brief of the National Association of Criminal Defense Lawyers
• Petitioner's reply

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Title: Scheffer v. Civil Service Employees Ass’n, Local 828
Docket: 10-719
Issue(s): (1) Are the ideological views of a public-interest legal aid organization that is providing the attorneys for a class action pertinent to the individual counsel's ability to fairly and adequately represent the class? (2) If so, does denial of class-counsel status based upon the funding legal organization's ideological views violate the First Amendment rights of the attorneys and their clients who associate with the organization?

Certiorari stage documents:

• Opinion below (2nd Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of Center for Constitutional Jurisprudence, et al.

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Title: Felkner v. Jackson
Docket: 10-797
Issue(s): Whether a ruling by the court of appeals on habeas, reversing a district court's decision and finding a state prosecutor's proffered race-neutral bases for peremptorily striking two out of three African-American jurors insufficient, satisfies the restrictions on habeas corpus relief imposed by Congress in 28 U.S.C. § 2254(d)?

Certiorari stage documents:

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

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Title: Quinn v. Judge
Docket: 10-821
Issue(s): Whether, contrary to the longstanding practice and the laws of many States, the Seventeenth Amendment requires a special election to fill a vacant Senate seat "every time that a vacancy happens in the state's senate delegation"-as the decision below holds-even where the vacated term will expire in the normal course following the next, biennial Congressional election.

Certiorari stage documents:

• Opinion below (7th Cir.)
• Petition for certiorari
• Brief in opposition to petition for certiorari
• Amicus brief of Louisiana, et al.
• Petitioner's reply

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The following petitions have been re-listed for the conference of February 18.  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.