Tag Archives: cert petition

Cert Grant Threatens D.C. Circuit’s Intermountain Decision

Yesterday the Supreme Court granted cert in United States v. Home Concrete & Supply, LLC, No. 11-139 (S. Ct.) [Home Concrete & Supply, LLC v. United States634 F.3d 249  (4th Cir. 2011)], which raises the same issue as the D.C. Circuit’s opinion in Intermountain Ins. Serv. of Vail, LLC, v. Comm’r, No. 10-1204 (D.C. Cir. June 21, 2011, amended Aug. 18, 2011) (Tatel, J., joined by Sentelle, C.J., & Randolph, S.J.), but reaches the opposite result. Continue reading


Cert Petition Challenges D.C. Circuit’s Holding that One Is Detainable Under the AUMF by Virtue of Being “Part of” Al Qaeda.

A Guantanamo detainee filed a petition for certiorari in the Supreme Court yesterday, after the D.C. Circuit reversed his habeas grant in Uthman v. Obama, No. 10-5235, 637 F.3d 400 (D.C. Cir. Mar. 29, 2011) (Kavanaugh, J., joined by Garland & Griffith, JJ.).

Questions Presented:

1. Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

2. Whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush, 553 U.S. 723, 768 (2008), that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2.

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that the constitutional habeas right extends to Guantanamo detainees, but “d[id] not address the content of the law that governs petitioners’ detention.” Since then, the Supreme Court has declined to grant cert in a Guantanamo case.

(Hat Tip: Benjamin Wittes at Lawfare)

Cert Petitions Filed in Indian Land Case

Marissa Miller at SCOTUSblog flagged as “petitions of the day” two cert petitions seeking review of Patchak v. Salazar, No. 09-5324, 632 F.3d 702 (D.C. Cir. Jan. 21, 2011) (Randolph, S.J., joined by Henderson & Griffith, JJ.). Both were filed August 25, 2011.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, No. 11-246 (S. Ct.)

Questions Presented:

I. Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving “trust or restricted Indian lands” apply to all suits concerning land in which the United States “claims an interest,” 28 U.S.C. § 2409a(a), as the Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether they apply only when the plaintiff claims title to the land, as the D.C. Circuit held.

II. Whether prudential standing to sue under federal law can be based on either (i) the plaintiffs ability to “police” an agency’s compliance with the law, as held by the D.C. Circuit but rejected by the Fifth, Sixth, Seventh, and Eighfh Circuits, or (ii) interests protected by a different federal statute than the one on which suit is based, as held by the D.C. Circuit but rejected by the Federal Circuit.

Salazar v. Patchak, No. 11-247 (S. Ct.)

Questions Presented:

1. Whether 5 U.S.C. 702 waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian Tribe.

2. Whether a private individual who alleges injuries resulting from the. operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act, ch. 576, 48 Stat. 984.