U. S. Supreme Court
Cert. Petitions Pending in Significant Federalism Cases
(9 listed, updated May 27, 2005)
Click on the case to read the Questions Presented.
(For information on petitions for certiorari in takings cases, click
here.)
June Carabell; Keith Carabell; Harvey Gordenker;
Frances Gordenker v. United States Army Corps of Engineers, United States
Envirnomental Agency, S. Ct. 04-1384
Petition Filed: April 11, 2005
Lower Court Opinion: The opinion of the Court of Appeals is reported at
391 F.3d 704 (6th Cir. 2004).
Questions Presented:
1. Does the Clean Water Act extend to wetlands that are hydrologically
isolated from any of the "waters of the United States?"
2. Do the limits on Congress' authority to regulate interstate commerce
preclude an interpretation of the Clean Water Act that would extend
federal authority to wetlands that are hydrologically isolated from
any of the "waters of the United States?"
Gary L. Bass v. Ira W. Madison and United States
of America, S. Ct. No. 03-1404
Petition Filed: April 6, 2005
Lower Court Opinion: The opinion of the court of appeals is reported as
Madison v. Ritter, 355 F.3d 310 (4th Cir. 2003).
Question Presented:
The Religious Land Use and Institutionalized Persons Act ("RLUIPA"),
42 U.S.C. §§ 2000cc through 2000cc-5, contains provisions
prescribing what religious accommodation policies must be implemented
in state prisons ("Prison Provisions"). This petition presents
the following questions:
1. Do the Prison Provisions of RLUIPA violate the Establishment Clause?
2. Does Congress have authority to enact the Prison Provisions of RLUIPA,
using the Spending Clause, the Commerce Clause, or any other grant of
authority?
3. If the Prison Provisions are constitutional, does the existence
of a detailed remedial scheme and/or a special sovereignty interest
preclude the application of Ex Parte Young, 209 U.S. 123 (1908),
thereby leaving sovereign immunity as a bar to the federal court injunction
sought by the respondent?
The Board of Trustees of the University of
Illinois v. Fujitsu Limited and Fujitsu Hitachi Plasma Display Limited,
S. Ct. No. 04-1346
Petition Filed: April 4, 2005
Lower Court Opinion: The opinion of the court of appeals dismissing Petitioner's
appeal (App., infra, 1a-13a) is reported at 374 F.3d 1098 (Fed.
Cir. 2004).
Question Presented:
1. Whether a State loses the right to an immediate appeal of a district
court's denial of a claim of Eleventh Amendment sovereign immunity -
a right recognized in Puerto Rico Aqueduct & Sewer Authority
v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) - when the district
court indicates it may revisit the denial later in the lawsuit.
John A. Rapanos; Judith A. Nelkie Rapanos;
Prodo, Inc.; Rolling Meadows Hunt Club; and Pine River Bluff Estates,
Inc. v. United States of America, S. Ct. No. 04-1034
Petition Filed: January 28, 2005
Lower Court Opinion: The opinion of the Court of Appeals is reported at
376 F.3d 629 (6th Cir. 2004).
Questions Presented:
1. Does the Clean Water Act prohibition on unpermitted discharges to
"navigable waters" extend to nonnavigable wetlands that do
not even abut a navigable water?
2. Does extension of Clean Water Act jurisdiction to every intrastate
wetland with any sort of hydrological connection to navigable waters,
no matter how tenuous or remote the connection, exceed Congress' constitutional
power to regulate commerce among the states?
Columbia River Correctional Institute v.
Billy Ray Phiffer, S. Ct. No. 04-947
Petition Filed: January 11, 2005
Lower Court Opinion: The Ninth Circuit Court of Appeals' first decision
in this case was not reported.
Questions Presented:
1. Was Congress's purported abrogation of the States' Eleventh Amendment
immunity from private damages claims brought under Title II of the Americans
with Disabilities Act, and based on alleged disability discrimination
and not on the deprivation of any fundamental right, a valid exercise
of its authority under section 5 of the Fourteenth Amendment?
2. Was Congress's purported abrogation of the States' Eleventh Amendment
immunity from private damages claims brought under Section 504 of the
Rehabilitation Act a valid exercise of its authority under section 5
of the Fourteenth Amendment?
3. The Court has made it clear that State Eleventh Amendment immunity
is constitutionally protected and that waivers of constitutionally protected
rights must be knowing and voluntary. The Court also has noted, however,
that Congress may, in the exercise of its spending power, condition
its grant of funds to the States upon their taking actions that Congress
could not otherwise require them to take, including, perhaps, waiving
their Eleventh Amendment immunity. Under Section 504 of the Rehabilitation
Act, Congress expressly has conditioned the States' acceptance of federal
funds on the States' waiver of Eleventh Amendment immunity. For the
waiver to be valid, must a State knowingly and voluntarily agree to
waive, by its acceptance of federal funds, its constitutionally protected
sovereign immunity, or is it sufficient that Congress clearly express
its intent to require waiver as a condition for receipt of federal funds?
D.A.S. Sand & Gravel, Inc.v. Elaine L. Chao,
S. Ct. No. 04-978
Petition Filed: January 4, 2005
Lower Court Opinion: The initial opinion of the United States Court of
Appeals for the Second Circuit is reported at D.A.S. Sand and Gravel,
Inc. v. Elaine L. Chao, United States Secretary of Labor, et al.,
370 F.3d 309 (2d Cir. 2004).
Questions Presented:
The Second Circuit affirmed The Mine Safety Health Administration's
("MSHA") jurisdiction over petitioner, D.A.S. Sand and
Gravel, Inc., based on § 4, the jurisdiction clause, of the
Federal Mine Safety and Health Amendments Act of 1977 ("The Mine
Act" or "the Act") Pub. L. No. 95-164, 91 Stat 1290,
codified at 30 U.S.C. § 801, et seq. The agency claims
Congress intended to regulate mines to the full extent of its power
under the Commerce Clause even though the statutory term 'affecting
. . . commerce' is clearly qualified and reads ". . . mine, the
products of which enter commerce, or the operations or products of which
enter commerce." Neither the Agency nor the Second Circuit give
any meaning to the qualifying words "products of which" included
two times, with the statutory term affecting commerce. Giving no meaning
to the qualify words of the statutory term 'affecting commerce' is directly
contrary to numerous recent rulings of this court.
Three questions are presented:
1. May an administrative agency, MSHA, give no meaning to words the
Congress included in a statute that clearly qualify the statutory term
'affecting . . . commerce'?
2. Did Congress directly speak to the issue of its alleged intent to
regulate every mine possible to the full extent of the Commerce Clause?
3. Is there a reasonable alternative interpretation of the statue that
gives meaning to the qualifying words yet still authorize regulation
to the extent that other parts of the statue indicate?
Central Virginia Community College, Virginia
Military Institute, New River Community College, and Blue Ridge Community
College v. Bernard Katz, S. Ct. No. 04-885
Petition Filed: December 28, 2004
Lower Court Opinion:The panel decision of the United States Court of Appeals
for the Sixth Circuit is unpublished but is reported as Katz v. Central
Virginia Community College (In re Wallace's Bookstores), 106 Fed.
Appx. 341 (6th Cir. 2004).
Question Presented:
1. May Congress use the Article Bankruptcy Clause, U.S. Const. art.
I, § 8, cl. 4, to abrogate the States' sovereign immunity?
Wayne Charles Oken v. The Monsanto Company,
S. Ct. 04-579
Petition Filed: October 29, 2004
Lower Court Opinion: The opinion of the United States Court of Appeals
for the Eleventh Circuit affirming the district court's grant of summary
judgment for all respondents is published at 371 F.3d 1312.
Question Presented:
1. Which if any, state law personal injury claims are preempted by
the Federal Insecticide, Fungicide, and Rodenticides Act, 7 U.S.C. 136-136y?
Dianne R. Nielson, in her official capacity
as Executive Director of the Utah Department of Environmental Quality,
et al. v. Private Fuel Storage, L.L.C., and Skull Valley Band of Goshute
Indians, S. Ct. No. 04-575
Petition Filed: October 28, 2004
Lower Court Opinion:The United States Court of Appeals for the Tenth Circuit
is reported at 376 F.3d 1223.
Question Presented:
1. Whether a federal court, consistent with ripeness and facial preemption
standards, may sweepingly invalidate, as preempted on their face by
the Atomic Energy Act, a variety of state laws that have not been and
may never be applied and that are capable of being validly applied to
address non-radiological safety aspects of a proposed storage facility
for spent nuclear fuel.
To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com
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