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A Look Ahead to the June Conferences
By Akin Gump Supreme Court Practice Group
Yesterday morning, the Justices convened for the first of the final three scheduled conferences before the summer recess. As Jason noted last week, the Court has already granted certiorari in 31 cases for the term beginning next October — which, after taking into account consolidated cases, amounts to 28 hours of oral argument. Before departing for the summer, the Justices will no doubt aim to fill the remainder of the October, November and December docket. Unless the Court opts to hear argument in more than two cases per day during those months, which is a possibility, it would need to grant cert in four additional cases to fill out the fall calendar.
If our lists of “petitions to watch” are any indication, the Court will not lack a sufficient number of candidates to choose from. Overall, Tom has identified 35 petitions up for consideration this month with a reasonable chance of being granted — four of which have been explicitly recommended for consideration by the Solicitor General. For a preview of some of the more noteworthy and interesting petitions, continue reading after the jump.
Yesterday’s conference (click here for watch list) was the lightest of the month, with seven cases up for consideration on our list, and only one in which the Court called for the views of the Solicitor General. Among them are two cases — Tyson Foods v. de Ascencio (07-1014) and Gorman v. Consolidated Edison Corp. (07-1019) — involving what activities constitute “work” under the Fair Labor Standards Act. Similarly, the petition in Anderson v. Cagle’s Inc. (07-910) asks whether a poultry processor was required to pay line workers for time spent changing in and out of protective equipment.
In addition to representing the petitioner in Tyson Foods, Akin Gump also represents the petitioner in a death penalty case from the 6th Circuit — Cone v. Bell (07-1114) — involving federal habeas courts’ power to review certain claims made in state court. The conference also features a petition — Fitzgerald v. Barnstable School Committee (07-1125) — involving allegations of student-on-student sexual harassment at a Massachusetts elementary school, which asks whether Congress intended Title IX to preclude suits against federally funded schools for unconstitutional gender discrimination.
The most prominent petition of the month — Ashcroft v. Iqbal (07-1015) — comes up for consideration June 12 (full watch list here). As Lyle previously discussed, the Court will consider a government request to overturn a Second Circuit decision that declined to dismiss a suit against former Attorney General John Ashcroft and FBI Director Robert Mueller, whom the plaintiff alleges personally condoned plans to isolate all Arab and Muslim immigrants arrested near New York City in the wake of 9/11 in the maximum security wing of a Brooklyn prison.
The Court will also consider two petitions of interest on appeal from the Seventh Circuit. One of the cases, Cavel International Inc. v. Madigan (07-962), asks the Court to overturn an Illinois law that threatens to shut down the one remaining U.S. company specializing in the export of horsemeat. The other, Dupuy v. McEwan (07-1075), presents the timely question of what rights states must afford parents accused of child abuse before placing their children in protective custody. (Disclosure: Professor Jeffrey Fisher of the Stanford Supreme Court Litigation Clinic, with whom Akin Gump collaborates on projects, is the counsel of record.)
The June 12 conference will also feature two petitions meriting the Court’s request for the Solicitor General’s view, though both resulted in recommendations of denials. The first, Exxon v. Doe (07-81), presents a technical question of appellate jurisdiction in a case involving allegations that Indonesian soldiers hired to guard a natural gas facility in the tumultuous Aceh province committed human rights abuses against the local population. The second, Progress Energy v. Taylor (07-539), which also was filed by Akin Gump, asks whether federal regulations prevent companies and employees from reaching out-of-court settlements of past, as opposed to future, claims under the Family Medical Leave Act.
Finally, in a high profile case that did not make our watch list — Goldstein v. Pataki (07-1247) — the Justices will consider an eminent domain challenge by a group of Brooklyn residents to the construction of an arena slated to house the professional basketball franchise currently located in New Jersey.
At the June 19 conference (watch list here), the Justices will consider 17 petitions we’ve identified as having a reasonable shot of being granted — the most of any conference so far this year — including nine in which the Court called for the views of the Solicitor General. Of those nine petitions, the government recommended the Court grant plenary review in four cases: Pacific Bell v. linkLine Communications (07-512), an anti-trust case; AT&T v. Hulteen (07-543), involving the interplay of Title VII and the Pregnancy Discrimination Act; Amschwand v. Spherion (07-841), an ERISA case; and Harbison v. Bell (07-8521), involving death row prisoners’ right to appointed counsel. In the Pacific Bell case, interestingly, the Federal Trade Commission issued a statement opposing the government’s grant recommendation and calling the holding of the 9th Circuit below “unquestionably correct.”
Meanwhile, the most noteworthy petition at the conference — Winter v. Natural Resources Defense Council (07-1239) — involves the Navy’s challenge to a 9th Circuit ruling that enjoined the use of certain sonar devices for failure to conduct an environmental impact statement, despite a finding by the Council on Environmental Quality that “emergency circumstances” justified an exception. Another petition involving a clash between security and environmental interests is Defenders of Wildlife v. Chertoff (07-1180), which asks whether a federal statute authorizing the Secretary of Homeland Security to suspend environmental laws in the name of border security unconstitutionally delegated too much authority to the Executive Branch. (Tom did not deem the petition to have a reasonable chance of being granted, however.)
Finally, the Court will weigh a petition from the state of South Carolina — Stewart v. Martin (07-1074) — asserting that federal courts should have simply abstained from considering a constitutional challenge to its anti-gambling laws. If granted, the case could signal a revival of the so-called “Burford abstention” doctrine — so named for the 1943 case that let federal judges decline to consider certain complex state cases over which they otherwise had jurisdiction — which the Court has not invoked since 1951.
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