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This edition of ?Petitions to watch? features cases up for consideration at the Justices? February 25 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: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
Docket: 10-553
Issue(s): Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition of the EEOC
• Brief in opposition of respondent Cheryl Perich
• Amicus brief of religious organizations
• Amicus brief of Christian Reformed Church in North America et al.
• Amicus brief of International Mission Board of the Southern Baptist Convention et al.
• Petitioner's reply brief

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Title: City of New York v. Metropolitan Taxicab Board of Trade
Docket: 10-618
Issue(s): Whether Congress, in enacting the Energy Policy and Conservation Act, intended to preempt state and local governments from adopting incentive programs to promote the purchase of fuel-efficient vehicles?

Certiorari stage documents:

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition (forthcoming)
• Petitioners' reply (forthcoming)
• Amicus brief of Public Citizen, Inc.
• Amicus brief of the City of Chicago

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Title: S&M Brands, Inc. v. Caldwell
Docket: 10-622
Issue(s): (1) Whether a binding agreement among multiple states and private companies is immunized from antitrust scrutiny under the state-action immunity doctrine of Parker v. Brown (1943); and (2) whether a binding agreement among multiple states, with both intra- and interstate effects, violates the Compact Clause, Article I, § 10, cl. 3 of the United States Constitution, in the absence of congressional approval.

Certiorari stage documents:

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition (forthcoming)
• Amicus brief of Freedom Holdings et al.
• Reply brief for the petitioners

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Title: Lay v. United States
Docket: 10-695
Issue(s): (1) Whether investment advisers to hedge funds owe fiduciary duties to investors in the funds; (2) whether the offenses of mail and wire fraud can be committed when there is neither a ?gain? of any nature to the defendant nor use of the mail or wires to cause a person to part with money or property; and (3) whether it was reversible error for the trial court to fail to give a proper limiting instruction to the jury in connection with the use at petitioner's trial of transcript testimony from an earlier deposition.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Dr. Barron H. Harvey et al.
• Amicus brief of Gerald Sherwin et al.
• Petitioner's reply

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Title: Evanson v. Reedy
Docket: 10-701
Issue(s): 1) What standard should be used to determine the existence of probable cause in, and the availability of qualified immunity for, an arrest warrant under the Fourth Amendment; (2) whether qualified immunity should be restricted primarily to situations requiring split-second decisions and denied for a mistaken arrest when there was an objectively reasonable basis for the arresting officer to believe that probable cause existed under the Fourth Amendment to make the arrest; and (3) whether a police officer, who reasonably suspects a complainant's criminal behavior, credibility, and recent drug use, violates the Fourth Amendment by requesting a hospital to test for drug use the blood sample that the complainant voluntarily provided to the police as part of a rape kit.

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply (forthcoming)
• Amicus brief of the Pennsylvania State Association of Township Supervisors

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Title: First American Financial Corp. v. Edwards
Docket: 10-708
Issue(s): 1) Whether, under the Real Estate Settlement Procedures Act of 1974 - which prohibits any referral fee for business incident to a real estate settlement service involving a federal-related mortgage loan, and holds any violator of this provision liable to the person charged for the settlement service - a private purchaser of real estate settlement services has standing to sue in federal court absent any claim that the alleged violation affected the price, quality, or other characteristics of the services provided; and 2) whether such a purchaser has standing to sue under Article III, § 2 of the United States Constitution.

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of law professors
• Amicus brief of American Land Title Association et al.
• Amicus brief of American Escrow Association et al.

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Title: Vaughan Roofing & Sheet Metal, L.L.C. v. Rodriguez
Docket: 10-841
Issue(s): Whether the Immigration Reform and Control Act of 1986 preempts state law awards of workers? compensation benefits to illegal aliens, particularly payments for replacement of wages that could not have been lawfully earned.

Certiorari stage documents:

• Opinion below (Court of Appeal of Louisiana, 3d Cir.)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply (forthcoming)

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The following petitions have been re-listed for the conference of February 25.  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: Maples v. Allen
Docket: 10-63
Issue(s): (1) Whether the Eleventh Circuit properly held that the purported state procedural default rule is ?adequate? as a matter of federal law to bar federal habeas review of serious constitutional claims and (2) whether the Eleventh Circuit properly held that there was no ?cause? to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Alabama Appellate Court Justices et al.
• Amicus brief of the Alabama Criminal Defense Lawyers Association
• Amicus brief of the National Association of Criminal Defense Lawyers
• Amicus brief of the Constitution Project
• Petitioner's reply

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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: 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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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
• Amicus brief of Louisiana et al.
• Petitioner's reply

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