Thursday, June 07, 2007
Supplemental Briefs in CVSG Cases
09:43 AM | Amy Howe | Comments (0)
UPDATED 1:05 pm: Two weeks ago I had this post regarding the invitation briefs filed by the Solicitor General in (among others) Nos. 05-1645, Wallace v. Calogero, & No. 06-11, Leclerc v. Webb, No. 06-830, Joblove v. Barr Labs, and No. 06-179, Riegel v. Medtronic. In response to the government's recommendation that cert. be denied in each of the cases, the petitioners in Wallace, Leclerc, Joblove, and Riegel have recently filed supplemental briefs urging the Court to grant cert. notwithstanding the government's recommendation.
The cases are scheduled to be considered by the Court at its June 21 conference; the Court will likely announce whether it will grant review on Monday, June 25.
Today at the Supreme Court: 6/7/07
09:30 AM | Jason Harrow | Comments (0)
The Court is holding a private Conference today to discuss new and pending cases. Our list of "Petitions to Watch" for this Conference can be found here.
Regular orders relating to today's Conference are scheduled to be released Monday at 10 AM eastern. If any other orders are released between now and that time, we will post them promptly (see this post regarding the possibility of an "early" order in a potential replacement case for Claiborne).
Wednesday, June 06, 2007
Round-Up
06:27 PM | Gretchen Sund | Comments (0)
Last week, ABC News Correspondent Jan Crawford Greenburg had this article on the short list being prepared by the White House in the event of a summer vacancy on the High Court. Today, at Above the Law, David Lat has this post about Greenburg's article and her recent appearance at an Ethics and Public Policy Center event where she discussed her book, Supreme Conflict, and offered insights on the Court's direction.
Marcia Coyle has this article on the "homestretch of the October 2006 term" in the National Law Journal. The AP's Mark Sherman reports here on the split in death penalty cases heard before the Court this term.
In today's Wall Street Journal, Greg Hitt reports here (subscription req'd) on a patent law battle that has moved from the High Court to the Senate floor, "where a committee is set today to consider legislation back by Democratic and Republican leaders that would make patents harder to get and easier to challenge"; Peter Lattman weighs in here at the WSJ.com Law Blog.
At the Consumer Law & Policy Blog, Scott Nelson has this post on the Safeco v. Burr ruling, which "will heighten the importance of consumers' taking it up on themselves to check their credit periodically without the impetus of adverse-action notices."
This editorial, published in the LA Times yesterday, discusses the Louisiana Supreme Court's recent ruling upholding the death sentence of a child rapist and argues that the Supreme Court "shouldn't compound the error — and increase its own workload — by allowing states to execute criminals who do not take a human life"; Doug Berman weighs in here at Sentencing Law and Policy.
Lastly, at FindLaw, Michael C. Dorf has this piece on the Claiborne dismissal, which "reveals a deep tension in the Justices' understanding of the power they wield."
Practitioners' Reactions To Proposed Revisions To Supreme Court Rules - Part III
01:13 PM | Kevin Russell | Comments (0)
Updated: June 7 10:00AM
This is the third in a series of posts about practioners’ reaction to proposed amendments to the Supreme Court’s rules. The first post addressed new word limits for briefs, font requirements and electronic filing. The second post looked into time limits for filing merits and cert-stage amicus briefs. This final post will discuss the most controversial change: an alteration to the disclosure requirements for amicus briefs. We also include links to some of the public comments sent to the Court in response to the proposed revisions.
UPDATE: We've now added comments from the National Association of Criminal Defense Lawyers and the ACLU/Public Citizen Litigation Group to the bottom of this post.
The Revision
The current version of Rule 37.6 requires each amicus brief to disclose, in the first footnote, “whether any counsel for a party authored the brief in whole or in part and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief.”
The proposed revision adds an additional disclosure requirement: “whether such counsel or a party is a member of the amicus curiae, or made a monetary contribution to the preparation or submission of the brief.”
The Reaction
This proposal caused a fair degree of consternation at a forum of some local Supreme Court practitioners sponsored by the Georgetown Supreme Court Institute. For one thing, many were concerned about the requirement that the amicus must disclose whether any lawyer in the case is a member, including counsel on the other side of the case. For example, an attorney representing the Government might, in fact, be a member of an organization filing an amicus brief against the Government in a particular case. The disclosure of that fact could be embarrassing and, most thought, served little purpose. The problem would be even more acute in some cases, for example, in cases in which political parties file amicus briefs, the parties would be required to inquire into and divulge the political affiliations of all the lawyers in the case. It would seem particularly problematic for, say, the Democratic Party to have to state that an attorney in the Solicitor General’s Office belonged to the party, especially if the brief was adverse to the position of the Government in that case.
UPDATE: Pfizer application denied
11:39 AM | Lyle Denniston | Comments (0)
UPDATE 2:40 p.m.
Supreme Court Justice John Paul Stevens on Wednesday denied, without opinion, an application by Pfizer, Inc., to stay and recall the mandate of the Federal Circuit Court's March 22 decision nullifying patent claims on a Pfizer high blood pressure drug. The order by Stevens allows makers of generic products to continue marketing substitutes for Pfizer's Norvasc.A U.S. company that makes and sells cheaper generic versions of brand-name drugs urged a Supreme Court Justice on Tuesday to allow it to continue marketing a generic medicine for easing high blood pressure. Apotex Corp. said it would be hurt far more than Pfizer Inc., the brand-name medicine's manufacturer, if Justice John Paul Stevens acts to stall a lower court ruling in Apotex's favor. The Federal Circuit Court on March 22 struck down three claims on Pfizer's patent for its widely used Norvasc blood pressure drug. Pfizer has asked Stevens to block that ruling temporarily.
Pfizer's Norvasc patent actually expired on March 25, but it went to Justice Stevens in hopes of protecting its right to be the exclusive source of the medicine during a special six-month extension of its patent monopoly through Sept. 25. Apotex has been marketing its generic version since May 24, relying upon the Federal Circuit ruling that the Pfizer patent claims were invalid because their development was "obvious." That continued competition is what Pfizer sought to interrupt with its stay application (Pfizer v. Apotex, 06A1131).
Apotex filed its answer (download here) at Stevens' request. On Wednesday, Pfizer filed this reply. Pfizer also has a motion pending before the full Court to act swiftly on its petition challenging the Federal Circuit decision. Pfizer wants the case sent back to the Circuit Court for another look. The Court is expected to consider that separate request quickly, perhaps at its private Conference this Thursday.
In Apotex's response, the company contended that Pfizer may lose some profits if Apotex continues in the market, but that Pfizer could later make a claim for damages if its patent should later be upheld. "Absent a showing that the court of appeals could not fashion effective relief should that court ultimately rule in favor of Pfizer, it has no right to a stay because Pfizer's injury is not irreparable." In any event, Apotex said, Pfizer's estimate that it would lose some $600 million in revenue over the next four months was "overstated" because Pfizer would go on facing competition from the marketing of another generic by Mylan Laboratories.
By contrast, Apotex said, a delay in its victory on the patent's invalidity would result in losses that it would have no way ever of recovering, if that victory should ultimately stand. Its costs, it said, would include what it spent to put its generic medicine on the market, the cost of stopping sales, and the loss of profits from marketing its drug. "The stay could be expected to last for most if not all of the remaining period" of Pfizer's patent extension, Apotex argued. Come late September, the case would become moot, and Apotex would have no remedy at all, it said.
Pfizer, in seeking a stay and a recall of the Federal Circuit ruling against it and in its petition challenging that decision, wants the Supreme Court to return the case to that appeals court to reconsider in light of the Justices' ruling in KSR International v. Teleflex on April 30, ordering the Circuit Court to take a more flexible view of when an invention is "obvious."
Apotex contended on Tuesday that the KSR ruling already has been brought to the attention of the Federal Circuit, so it considered it in the Pfizer case before putting that ruling into effect. Moreover, Apotex contended, KSR would not require a change in the Circuit Court's ruling against the Pfizer patent.
Continue reading "UPDATE: Pfizer application denied" »
Today at the Supreme Court: 6/6/07
09:08 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for regular orders and opinions is Monday, June 11.
Tuesday, June 05, 2007
More on Yesterday's Decision in No. 06-7317, Erickson v. Pardus
05:10 PM | Amy Howe | Comments (0)
Two weeks ago, in Bell Atlantic v. Twombly, the Court held that a complaint alleging a violation of the Sherman Act should be dismissed for failure to state a claim when it alleged a conspiracy but failed to specifically allege “some factual context suggesting agreement, as distinct from identical, independent action.” In so holding, the majority rejected fifty-year-old language in the Court’s opinion in Conley v. Gibson regarding “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” The “no set of facts” language, Justice Souter’s majority opinion in Twombly explained, was merely “an incomplete, negative gloss on an accepted pleading standard” that “described the breadth of opportunity to prove what an adequate complaint complains”; it was not, he emphasized, “the minimum standard of adequate pleading to govern a complaint’s survival.” Commentators mused about Twombly’s impact: our own Marty Lederman queried here whether Twombly “signal[ed] the rejection of notice pleading” altogether, Scott Dodson raised the prospect that “the Court [was] saying that Rule 8 requires ‘notice-plus’ pleading”; and Michael Dorf described a “rough consensus” “that there’s no way to understand the decision if it doesn’t apply a heightened pleading standard.” By contrast, Einer Elhauge (at the Volokh Conspiracy) dismissed the case as “quite insignificant,” while Richard Samp posited that “Twombly does not turn away from notice pleading.”
Yesterday the Court issued a per curiam summary reversal in No. 06-7317, Erickson v. Pardus, that (as Paul Wolfson notes here) seemed to make clear what Justice Souter reiterated in Twombly: the Court in that case was not imposing a heightened pleading standard, but instead requiring “only enough facts to state a claim to relief that is plausible on its face.”
Continue reading "More on Yesterday's Decision in No. 06-7317, Erickson v. Pardus" »
Round-Up
03:52 PM | Gretchen Sund | Comments (0)
Jess Bravin of the Wall Street Journal reports here (subscription req'd) on yesterday's dismissal of two Guantanamo cases by military judges, calling it "an unexpected stumble"; in today's New York Times, Adam Liptak has this article on the two separate rulings, a "decisive rebuke" for the Bush administration; Renee Montagne and Jackie Northam report here on NPR's "Morning Edition"; and Jim Michaels has this story in the USA Today on the decisions, "which dealt a setback to Bush Administration efforts to try terrorism suspects in military courts."
NPR's Nina Totenberg had this report on "All Things Considered" about the Court's unanimous opinion in Sole v. Wyner, "ruling that that a naked peace demonstrator must pay her own attorney fees"; David G. Savage reports here in the LA Times that "the Supreme Court's first ruling on an Iraq war protest is not likely to be remembered as a landmark."
The Washington Post's Charles Lane reports here on the Court's ruling in Uttecht, which "bolstered trial judges' authority to shape juries in death penalty cases"; Linda Greenhouse has this article in The New York Times on yesterday's developments at the Supreme Court and highlighting Justice Stevens's dissent in the Uttecht decision, which may be "an expression of the liberal justices' frustration with how the term is going." In the USA Today, Joan Biskupic reports here on the ruling and Stevens's dissenting opinion, "part of a recent pattern, where the four liberal justices have found themselves on the losing side of cases and are objecting in unusually forceful terms."
Opinion Authorship Predictions
02:26 PM | Tom Goldstein | Comments (9)
In this post, I gave my best guess on the authorship of various opinions. So far, I've been right (i.e., lucky): Justice Alito wrote Ledbetter and Justice Souter wrote Safeco/Geico. The prediction of the Chief writing in the race cases is also fairly obvious.
I have my doubts, though, about my sense that Justice Stevens was writing Rita / Claiborne. Jason's revised stat pack notes that Justice Stevens wrote two majority opinions in Brewer and Abdul-Kabir in January (a point I had missed). That tips the scales in favor of Justice Breyer writing at least one of the opinions in the sentencing cases, which were argued in February; as of that time, he had not written two majorities in a single sitting, so it would not make sense to leave him out of opinion authorship in February.
Claiborne, of course, has now been dismissed. Given the new SG filing just noted by Lyle, it will be interesting to see if the Court elects to decide the Claiborne issue just through broad language in Rita or instead to grant and expedite an alternative vehicle and issue a separate opinion. (A third option would be to defer deciding the Claiborne question until at least next Term.)
There is obviously no way to know whether Justice Breyer had a majority in Rita, in Claiborne, or both. So, the best I can do is change my prediction to say that Breyer will write for a majority.
Correction: I originally predicted that Justice Stevens would write Claiborne / Rita and that Breyer would write Hein. (In the original version of this post I said that I was "sticking" with a prediction of Justice Thomas writing Hein, which is doubly wrong: it wasn't my prediction, and doesn't make much sense because Thomas had two opinions in the previous sitting.) This creates a dilemma -- you can say confidently that Breyer had a majority opinion in February. It could be Rita or Hein, but could have been Claiborne. With no real way at all of knowing, I'm going to predict that the Chief Justice is writing Hein and that Justice Breyer is writing Rita.
Government suggests grant in Beal case
02:09 PM | Lyle Denniston | Comments (0)
U.S. Solicitor General Paul D. Clement urged the Supreme Court on Tuesday to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month. The document can be found here.
In a "supplemental memorandum," Clement recommended that the Court review the case of Beal v. U.S. (docket 06-8498) since it raises the issue that was before the Court in Claiborne v. U.S. (06-5618) -- a case that was nearing a decision, until the individual involved, Mario Claiborne, died. The Court on Monday ordered the Eighth Circuit Court to vacate that case as moot.
"The status of reasonableness review is perhaps the most pressing legal issue facing federal criminal justice today," Clement asserted.
The SG argued in his new filing that "the federal criminal justice system would greatly benefit from this Court's consideration of the merits of this case on an expedited basis. If the Court wishes to render a decision this Term, the parties have agreed to a proposed schedule for expedited briefing that would permit the Court to do so." The suggested schedule would have both sides file simultaneous 20-page briefs by Friday, June 15. The case could then go to the Court on those briefs, unless the Court asked for reply briefs or called for oral argument, Clement suggested. If the Court opts not to move that speedily, he added, it could grant review and set the case for argument as early as feasible in the new Term opening Oct. 1.
The new filing urged the Court to consider the new case at its Conference on Thursday of this week, with a grant order being announced on Friday -- thus allowing a week for briefs to be prepared and filed.
The Beal petition can be found here. The Eighth Circuit's decision in that case can be found here.
Continue reading "Government suggests grant in Beal case" »
New StatPack, Two New Sections
12:25 PM | Jason Harrow | Comments (0)
In our continuing quest to provide you with as much information about the Court as possible, we’ve added two new sections to our “StatPack” this week. In fact, as we keep adding features, the download is getting more difficult to navigate. Thus, you can download the full pack by clicking here, or you can download each section separately at the end of this post.
The first new feature comes by reader suggestion: you’ll now find decisions this Term broken down by vote, so that you can see the number of 5-4 or unanimous cases at a glance (you can download just this section here). For next week’s StatPack, we’ll be making this feature even more comprehensive by adding this data from previous Terms for comparison’s sake.Second, we now have a new page featuring the tally for the Court’s workload this Term. As noted here, things may change subtly between now and the Summer Recess, but it’s expected that the Court will issue 66 merits decisions after argument this Term. The Court is also on pace for 70 total merits decisions when summary reversals are included (note that argued cases that were dismissed are not included in these totals).
Both of those numbers are new modern lows for the Court, as 66 decisions after argument would be some 7% lower than last Term’s modern low of 71 cases. Such a drop has not been unexpected at all for Court-watchers, as the Court’s expanded workload in April did not entirely make up for its previously noted shortfall in cases argued during the December, February, and March sittings. Moreover, the slight dip continues the overall trend in the Court’s workload, as the Court has not decided more than 80 cases after argument since OT97, and has not decided more than 100 cases after argument since OT92 (for data going back to OT90, see this memo). Unless something remarkable happens in the next few weeks, however, the Court’s number of merits decisions after argument will dip below 70 for the first time in its modern history.
The individual section downloads can be found after the jump.
Continue reading "New StatPack, Two New Sections" »
"Conference Call" Petitions to Watch: 6/7
10:52 AM | Jason Harrow | Comments (0)
The "Conference Call" column in Legal Times is on a one-week hiatus (column archive here; subscription req'd), but the SCOTUSblog supplement for this Thursday's Conference, containing downloadable versions of the highlighted petitions (and, thanks to the continuing assistance of those involved in the cases, a great many other cert. stage filings), can nonetheless be found here.
Previous editions of "Petitions to Watch" can be accessed via the "Term Tracker" link.
Today at the Supreme Court: 6/5/07
09:07 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and opinions is Monday, June 11.
Monday, June 04, 2007
A hitch in the war crimes tribunals
08:23 PM | Lyle Denniston | Comments (1)
NOTE: The Supreme Court on April 30 refused to hear a challenge to the detention and war crimes prosecution of Omar Ahmed Khadr, and the D.C. Circuit Court on May 31 ruled that it had no jurisdiction to stop Khadr's war crimes trial from opening on Monday of this week. Khadr was to be offered a chance on Monday to answer the plea. Another detainee, Salim Ahmed Hamdan of Yemen, also was to answer charges on Monday; his appeal, too, was denied by the Supreme Court April 30. This post details what occurred in Guantanamo.
UPDATE 9:30 p.m. A second military judge at Guantanamo, Navy Capt. Keith Allred, later Monday made the same decision as the one described in this post. The new dismissal came in the case of Salim Ahmed Hamdan, and for the same reasons, according to news reports. The Hamdan order can be found here
.* * * * * *
A military judge in Guantanamo Bay, Cuba, on Monday dismissed war crimes charges against a 20-year-old Canadian being held in the military prison camp there, finding that the "military commission" that was to try him had no jurisdiction. The defect, however, can be cured, the judge indicated in a three-page decision in the case of Omar Ahmed Khadr. The text of the ruling can be found here (Note at 10:30 PM: Document changed to PDF format).
Although the military designated Khadr as an "enemy combatant" last Sept. 7, the actual charges against him first issued on Nov. 7 and made formal on April 24 said he was to be tried as an "alien unlawful enemy combatant." Military Judge Peter E. Brownback III, an Army colonel, concluded on Monday at the outset of the planned trial at Guantanamo that there is a difference between the two labels.
Under the Military Commissions Act passed by Congress last Fall, Col. Brownback noted, such a commission has authority only to try an "alien unlawful enemy combatant." It expressly does not have jurisdiction, he said, to try a "lawful enemy combatant." Examining the charge sheet the military issued against Khadr, the judge found "nothing...to establish or support jurisdiction over Mr. Khadr, except for a bare allegation [of unlawful enemy combatant] in the wording of the Specifications of the Charges." In the charge sheet, Khadr is referred to as "an alien unlawful enemy combatant," and its jurisdictional claim asserts that he was found to be "an unlawful enemy combatant" by a military review panel on Sept. 7, 2004.
Because only Khadr and another Guantanamo prisoner, Yemeni national Salim Ahmed Hamdan, face war crimes charges before "military commissions," it is not clear how wide an impact the Brownback decision will be. It was understood, however, that the Pentagon had planned to appeal the decision to either a higher military or civilian court. However, the military appeals court that Congress specified for reviewing commission proceedings does not yet exist. The Pentagon has indicated that it may wish to try many more individuals at Guantanamo, and the new decision could affect those plans.
It also was not clear what, if any, impact the ruling might have on other Guantanamo captives who do not face war crimes charges, but do face prolonged detention at the camp in Cuba. The military has conducted at least 558 proceedings on "combatant status" of Guantanamo prisoners, and it appears that most of those simply concluded that the individual involved was an "enemy combatant."
The judge stressed that he was "not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant" in the law passed by Congress. It is not up to the commission, he concluded, to make the decision that he meets that definition in order to give itself jurisdiction to try Khadr.
"A person had a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination, a person could be facing trial for months, without knowing if the court, in fact and in law, has jurisdiction," the judge wrote.
The ruling appeared to clear the way for the Pentagon to put Khadr back before a "Combatant Status Review Tribunal," an in-house military panel that is not set up as a court, to consider whether "a proper determination" of his status can be made. If Khadr then again was charged before a commission, he would be free, the judge declared, to "attack those facts" in the charges that "might combine to show him to be an unlawful enemy combatant."
Col. Brownback said he was not ruling that the Pentagon had to file a new set of charges against Khadr. That issue was not before him, but he added that that approadch "would seem to be the more prudent avenue to take." The ruling concluded: "The charges are dismissed without prejudice.".
Index to Today's Posts
06:40 PM | Jason Harrow | Comments (0)
Lyle's post about today's orders, including the call for a response to the petitions for rehearing in two detainee cases, is here.
Kevin has more on the issues presented in today's lone grant here.
A brief summary of the holdings in today's decisions can be found here. Lyle's commentary on Uttecht can be found here. Marcus Smith's commentary on Sole v. Wyner is here. Anton Pribysh's commentary on the Safeco/Geico decision can be found here.
Lyle discusses the details of the case that the Court sent to the SG today, Teck Cominco Metals v. Pakootas, here.
Gretchen has a Round-Up here.
Finally, the Order List and opinions can be found in full here.
Today's Decision in Safeco/Geico
05:59 PM | Jason Harrow | Comments (2)
The following commentary is by Anton Pribysh, a summer associate at Akin Gump and a student at Harvard Law School.
Do insurers owe their consumers “adverse action” notices after consulting credit reports for initial pricing decisions? Can those consumers collect statutory damages for merely “reckless” violations of that requirement? The Supreme Court today answered yes to both questions, but reversed the Ninth Circuit’s more sweeping holding that all consumers with less-than-spotless credit histories are owed notice.
Both Safeco v. Burr (No. 06-84) and GEICO v. Edo (No. 06-100) involved alleged violations of the Fair Credit Reporting Act (FCRA) – specifically, 15 U.S.C. § 1681m, which requires businesses using consumer credit reports in their pricing decisions to provide notice of any “adverse action” they take in setting terms or prices as a result of unfavorable consumer credit information. The plaintiffs in both cases (respondents here) filed suit in federal district court, seeking statutory damages under Section 1681n(a), which allows awards of up to one thousand dollars per consumer – regardless of actual damages – for “willful” violations. None of the plaintiffs claimed actual harm.
Continue reading "Today's Decision in Safeco/Geico" »
Today's Decision in Sole v. Wyner
05:08 PM | Jason Harrow | Comments (0)
The following opinion recap is by Marcus Smith, a summer associate at Akin Gump and a student at Yale Law School.
The Supreme Court ruled today in a unanimous decision that a party who wins a preliminary injunction but loses at summary judgment cannot be a “prevailing party” and awarded attorney’s fees under 42 U.S.C. 1988.
In January 2003, respondent T.A. Wyner informed petitioner Terrence Coullitte, who served as the manager of the MacArthur Beach State Park in Palm Beach County, Florida, that on February 14 she intended to engage in a demonstration that would involve nude bodies arranged in the shape of a peace symbol. After Coullitte responded that the protest would only be allowed if it did not involve nudity, Wyner and respondent George Simon filed a complaint against Coullitte and other state officials (also petitioners here) alleging that the prohibition of nudity violated the First and Fourteenth Amendments. They also sought a preliminary injunction to prevent state interference in the planned Valentine’s Day demonstration.
The district court granted the preliminary injunction, and the nude demonstration occurred without state interference. When it later turned to the merits of respondents’ complaint, however, the district court granted petitioners’ motion for summary judgment, holding that a complete ban on nudity was the least restrictive means to achieve the State’s important interests. The district court then further held that because Wyner and Simon had succeeded in obtaining the preliminary injunction, they were “prevailing parties” and therefore entitled to the attorney’s fees incurred in connection with the injunction. The Eleventh Circuit affirmed the award. (For a more detailed account of the facts and procedural history, see Achyut Phadke’s “Argument Preview” here)
Continue reading "Today's Decision in Sole v. Wyner" »
Round-Up
04:14 PM | Gretchen Sund | Comments (1)
Mark H. Anderson reports here (subscription req'd) in the Wall Street Journal on today's action including the Court's ruling in Safeco Insurance v. Burr; its 5-4 decision in Uttecht v. Brown; its decision to review the age discrimination lawsuit, Federal Express Corp. v Holowecki; and its request for the views of the Solicitor General in Teck Cominco Metals v. Pakootas.
Bloomberg's Greg Stohr reports here on the credit-score ruling, which limited the rights of consumers under the Fair Credit Reporting Act; James Vicini of Reuters has this article about the Court's unanimous opinion reversing Ninth Circuit rulings against Geico and Safeco; the AP's Pete Yost reports here on the decision making it harder to sue over credit reporting.
The AP's Mark Sherman reports here on the Court's ruling in Uttecht; David Stout has this article in the New York Times on the Court's opinion, which reinstated the death sentence of a convicted murderer, carjacker and rapist; and in the LA Times, David G. Savage has this story on the decision, which "was sharply split along conservative-liberal lines."
The Associated Press reports here on the High Court's unanimous ruling in Sole v. Wyner, making it more difficult to recover legal fees from the government; Tony Mauro has this post at the BLT. The AP also has this article on the Supreme Court's decision to decline the case of a widow of a leukemia victim attempting to hold oil companies accountable for her husband's poor health.
In today's Washington Post, Alan Cooperman reports here on "a highly visible rift in the anti-abortion movement" created by the Supreme Court's April decision upholding the Partial-Birth Abortion Ban Act. And the AP's David Eggert has this article on a Sixth Circuit ruling that rejected Michigan's attempt to ban "partial-birth" abortion.
Finally, William Glaberson has this article in the New York Times about the dismissal of war crimes charges against Guantánamo detainee Omar Khadr.
Analysis: Barring jurors in death penalty cases
02:45 PM | Lyle Denniston | Comments (1)
The Supreme Court, in a ruling Monday that split the Court 5-4, has elevated the importance of the role of defense lawyers when a trial judge decides to exclude a potential juror in a death penalty case because of what that juror has said under questioning about capital punishment. The Court majority in Uttecht v. Brown (06-413) treats as an unusually significant factor the defense's failure to raise a distinct objection when prosecutors want a juror off the case -- even when state law does not require such an objection to be made in order to raise it later on appeal. In fact, the language the majority uses in discussing the failure of an objection suggests that it considers it harmful to the process and a failing of the defense lawyer's professional obligations.
The majority opinion by Justice Anthony M. Kennedy and the lead dissenting opinion, by Justice John Paul Stevens, both focus very closely on the specific jury panel questioning that led to a judge's decision to bar a juror from a murder trial, but that focus diverts attention from the broader sweep of both the majority and dissenting opinions. Kennedy's opinion appears to stand for the proposition that federal courts should seldom second-guess a state trial judge's exclusion from a state murder trial of a juror who has ambiguous views about the death penalty but is not totally opposed to it in all circumstances. Stevens opinion, in turn, appears to be a strong complaint that the Court has moved to encourage the inclusion of jurors more likely to opt for death sentences. The two opinions appear to take sharply differing positions on what it means to find a juror cannot serve because he or she is "substantially impaired" in the ability to weigh a possible death sentence.
The ruling grows out of the murder trial of Cal Coburn Brown, who was convicted and sentenced to death for first degree murder. Brown was prosecuted for raping and torturing a woman for two days before killing her and dumping her body in a parking lot. During jury selection, one potential member of the panel -- his name was Richard Deal, although the Supreme Court refers to him throughout only as "Juror Z" -- repeatedly said that he could impose the death penalty in circumstances that he thought appropriate. But some of his answers (recounted in an appendix to the majority opinion) show some misunderstanding of Washington state law on punishment for murder, and some ambiguity about just when Mr. Deal would be willing to vote for a death sentence.
Kennedy's opinion canvasses those exchanges in detail, and comes ultimately to the conclusion that the state of Washington's courts had adequately supported Mr. Deal's exclusion, and that the Ninth Circuit Court was wrong in finding that it was error to have kept him off the jury. The majority opinion is built upon two major foundations: trust in the ability of trial judges to understand the demeanor and the atmospherics in the courtroom during jury selection, but distrust of defense lawyers who do not object when a juror who is equivocal about the death penalty is challenged for cause by prosecutors and then excluded by the judge.
The majority was composed of Kennedy, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Dissenting with Stevens were Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Breyer also filed a separate dissent, joined by Souter, arguing that the defense lawyer's failure to object to Juror Deal's exclusion should not even have been considered by the Court. Stevens recited orally about his dissenting views from the bench, following Kennedy's recitation for the majority.
Continue reading "Analysis: Barring jurors in death penalty cases" »
More on Today's Grant
02:27 PM | Kevin Russell | Comments (1)
Today the Court agreed to decide a question is left open last week in Ledbetter v. Goodyear, No. 05-1074: whether filing an “intake questionnaire” with the Equal Employment Opportunity Commission (EEOC) satisfies a statutory requirement that employees file a charge of discrimination with the EEOC before proceeding to court. The case is Federal Express Corp. v. Holowecki, No. 06-1322.
The Age Discrimination in Employment Act (ADEA), along with other federal employment discrimination statutes, requires that workers who believe they have been subject to unlawful employment discrimination file a “charge” of discrimination with the EEOC as a precondition for filing suit in federal court. The statute then requires the EEOC to notify the employer of the charge, investigate it, and seek to mediate the conflict. The statute also requires an employee to wait 60 days after filing the charge before suing in federal court. (Unlike Title VII, the ADEA does not require the employee to wait to receive a “right to sue” letter from the EEOC).
The statute does not, however, specify what constitutes a “charge.” The EEOC has developed regulations and procedures for accepting and processing charges. Among other things, the EEOC has developed a form “Intake Questionnaire” to give to workers who contact the agency regarding claims of employment discrimination (Form 283). The agency also has a “Charge” form (Form 5). The agency’s regulation does not require the use of either form to file a charge of discrimination, but instead states that “A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s).” The question in this case is whether filling out the questionnaire, and sending it to the EEOC, constitutes filing the “charge” of discrimination required by the statute.
Continue reading "More on Today's Grant" »
Reach of Superfund law at issue
12:39 PM | Lyle Denniston | Comments (0)
With the support of the Canadian government, the government of its British Columbia province, and others, a Canadian metal smelting company has asked the Supreme Court to insulate it from U.S. environmental law on the ground that the law cannot reach across the border into another nation. The Ninth Circuit Court, however, concluded that, because there were clear effects inside the U.S. of the Canadian company's operations, the U.S. Superfund law can reach that aspect of the operations. This extra-territorial question is one of two on which the Supreme Court is now soliciting the views of the federal government. In a brief order Monday, the Court invited the U.S. Solicitor General to offer some legal advice on the case of Teck Cominco Metals., Ltd., v. Pakootas, et al. (06-1188). Those views are not likely to be filed until sometime in the next Court Term, opening Oct. 1. The basic filings in this case can be found here.
Teck is a Canadian company that operates the world's largest lead and zinc smelter. It has operated that facility in the British Columbia community of Trail, about ten miles north of the Canada-U.S. border. For many decades, up to 1995, Teck dumped "slag" -- solid and liquid wastes from the smelter -- directly into the Columbia River; the smelter is located on the river's bank.
The slag allegedly flowed down the river, and crossed into the U.S., where it came to rest in the beds and banks of the Upper Columbia River and of Lake Roosevelt -- a lake stored behind the Grand Coulee Dam. Over time, this dumping operation is said to have deposited more than 13 million tons of slag into the river. The slag contains heavy metals, including arsenic, cadmium, copper, mercury, lead and zinc, plus other hazardous substances. The slag that allegedly has accumulated on the U.S. side of the border is decarying, releasing the heavy metals into the waters and polluting the lake and the river.
In 1999, the U.S. Environmental Protection Agency, responding to a plea from the Confederated Tribes of Colville Indians, who live on a reservation in upper Washington State, assessed the environmental hazard the slag may have been posing. It ordered Teck to clean up the waste dump in the river and lake, under the Superfund law (technically, the Comprehensive Environmental Response, Compensation and Liability Act -- CERCLA). EPA found that the potential migration of the waste from the Trail site in Canada amounted to a release of substances in violation of CERCLA.
The Canadian government entered into negotiations, and the company promised to do the required cleanup. In June 2006, an agreement was reached with a U.S. affiliate of Teck agreeing to study the problem under EPA supervision. EPA then withdrew its cleanup order.
While those negotiations proceeded, two members of the Colville tribe, Joseph A. Pakootas and Donald R. Michel, filed a citizen lawsuit against Teck under CERCLA, demanding that the company comply with the EPA order and demanding penalties for the pollution to date. The state of Washington entered the lawsuit with the same complaints and claims.
Teck moved to dismiss the lawsuit, on the ground that it was not a responsible party under CERCLA, because it was wholly Canadian in nature and operation. Since U.S. laws customarily do not apply to other nations, Teck argued, CERCLA should not reach its operations based in Canada. A U.S. District Court denied the challenge, allowing the lawsuit to proceed. The 9th Circuit Court ruled that applying U.S. law in this instance was not an extra-territorial enforcement, but rather was an application to activities occurring within the U.S. itself. That is the ruling that Teck has challenged in its Supreme Court appeal.
Continue reading "Reach of Superfund law at issue" »
Today's Orders and Opinions
10:41 AM | Jason Harrow | Comments (6)
The Order List is here.
NOTE: The Court did grant cert. in one case, FedEx v. Holowecki.
The opinion in Safeco is here.
The opinion in Uttecht is here.
The opinion in Sole is here.
The per curiam opinion dismissing Claiborne is here.
Court protects trial judges on juror dismissal
10:20 AM | Lyle Denniston | Comments (1)
The Supreme Court, dividing 5-4, ruled on Monday that federal courts must defer to trial courts in deciding whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment. The Court said that the trial judge "is in a superior position" to make that decision. The case was Uttecht v. Brown (06-413), with the Court reversing the Ninth Circuit Court. Justice Anthony M. Kennedy announced the decision of the majority, and Justice John Paul Stevens responded from the bench for the dissenters.
In Sole v. Wyner (06-531), the Court ruled unanimously -- in an opinion by Justice Ruth Bader Ginsburg -- that a party that files a civil rights case cannot recover attorneys' fees under federal law if that party had won a preliminary injunction in the case, but ultimately lost the case on the merits.
In a widely splintered decision, but with all nine Justices joining in the result, the Court ruled that a company can be found to have willfully violated the federal truth-in-credit law not only if it knew it was violating that law, but also if it had acted with "reckless disregard" of its duties toward consumers. The ruling came in the consolidated cases of Safeco Insurance v. Burr (06-84) and GEICO v. Edo (06-100).
The fourth decision was a summary order to vacate Claiborne v. U.S. (06-5618), a Sentencing Guidelines case, because the petitioner died last week. (See the post below.)
Court ends Claiborne case, seeks response on detainees
10:03 AM | Lyle Denniston | Comments (1)
UPDATE Decisions have been issued in Uttecht v. Brown (06-413), Safeco Insurance v. Burr (06-84) and Sole v. Wyner (06-531. (See the post above; further discussion of these rulings will come later.)
The Supreme Court on Monday threw out the case of Claiborne v. U.S. (06-5618), because the individual involved, Mario Claiborne of St. Louis, Mo., had died last week. The Court ordered an Eighth Circuit decision in the case vacated as moot. The case involved the question of whether it is presumed to be unreasonable for a federal judge to impose a below-Guidelines range sentence, if there were no extraordinary circumstances in the case. The Court took no immediate action on a plea to grant review in a substitute case from the Eighth Circuit raising the same issue.
The Court asked the U.S. Solicitor General to file the government's views on whether the Court should reconsider its refusal to hear two appeals by Guantanamo detainees. The Court denied review in both on April 2. The response of the government is due in 30 days -- perhaps reaching the Court after the current Term has ended late this month. The cases are Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).
The Court issued one summary decision, in Erickson v. Pardus (06 -7317), involving a prison inmate's right to adequate medical care. The Court said the Tenth Circuit Court, in upholding dismissal of William Erickson's civil rights case, had departed from conventional pleading standards.
The Court granted review in one new case for decision next Term, testing what kind of document a worker must file in order to start a claim of age discrimination in the workplace. The case, Federal Express v. Holowecki (06-1322), tests whether a questionnaire filed with the Equal Employment Opportunity Commission is sufficient to make charges against an employer.
The Court asked for the views of the Solicitor General on a case testing whether the U.S. Superfund law can be applied to a Canadian company for the environmental effects within the U.S. of the company's operations in Canada. The case is Teck Cominco Metals v. Pakootas (06-1188).
Today at the Supreme Court: 6/4/07
09:18 AM | Jason Harrow | Comments (0)
The Court is scheduled to issue regular orders at 10 AM eastern and is also expected to release one or more opinions at that time. We will have coverage of both as soon as possible after they are made public.
Saturday, June 02, 2007
Bid to rescue the Claiborne issue
05:30 PM | Lyle Denniston | Comments (0)
A public defender in St. Louis has urged the Supreme Court to find a way to decide in the current Term a significant issue about federal criminal sentencing law that was at stake in a case involving an individual who died last week. The case is Claiborne v. U.S. (docket 06-5618). The issue is whether a federal judge has the authority to impose a sentence that falls below the U.S. Sentencing Guideline range, if there are no "extraordinary circumstances" justifying the lesser punishment. The Court granted review of that issue in the case of Mario Claiborne on Nov. 6 and heard argument on Feb. 20; a decison was pending.
Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne. Mario Claiborne's death in a shooting incident in St. Louis on Wednesday has raised the question of what the Court would do with the case, and the issue.
Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne. Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."
Solicitor General Paul D. Clement, opposing Dwyer's motion so far as it urged a decision in the Claiborne case itself, argued on Friday that "the Court should vacate the grant of certiorari and dismiss the petition." There is no longer any controversy, now that Mario Claiborne has died, Clement argued.
The Solicitor General said in a footnote that his office would offer a separate filing on Dwyer's alternative suggestion to grant review of the Beal case. That additional response apparently was not filed as of Friday.
The motion and response were filed electronically with the Court Friday. Dwyer's motion can be found here, and the Solicitor General's response on the disimissal issue is here.
Continue reading "Bid to rescue the Claiborne issue" »
Friday, June 01, 2007
Analysis: The Pentagon's vast files on detainees
06:45 PM | Lyle Denniston | Comments (1)
The Pentagon, in deciding whether to keep Guantanamo Bay detainees imprisoned, apparently has gathered a vast amount of information about the captives -- sometimes from all across the government -- but the total file on any detainee is not going to be open for examination by lawyers testing a client's ongoing detention, and not made available to a reviewing civilian court. That is a situation -- not fully clear until now -- that appears to lie at the core of the deep controversy between government officials and detainees' lawyers about how much chance a detainee is gong to have to challenge in court a military decision to prolong the confinement at the military prison camp in Cuba.
The impression of a very wide gap between what detainees' lawyers are seeking and what the government is willing to let them see emerges from a new filing that the Justice Department made in the D.C. Circuit Court on Friday. It was a 12-page declaration by a high-ranking Pentagon official, heavily involved in detainee policy -- retired Rear Admiral James M. McGarrah. It describes how military officials have built up their files about hundreds of detainees previously held or still held at Guantanamo, and what part of those files is submitted to so-called "Combatant Status Review Tribunals" -- or CSRTs -- that the military has been operating at Guantanamo since 2004.. The CSRTs are the military's review panels that decide whether an individual held at Guantanamo is an "enemy combatant" and thus cannot be set free. (The government motion seeking to file the McGarrah declaration can be found here.)
Lawyers for detainees have argued for months that the CSRT process is entirely result-oriented, and that both the process itself and especially the information flowing to such panels from the Pentagon and the military is tightly controlled to produce desired outcomes, as well as to severely limit any review by the civilian courts. The Pentagon and Justice Department have responded to those complaints by saying that the tasks assigned the CSRTs are very limited in scope but that very little has been held back from detainees' lawyers and certainly not anything considered favorable toward a detainee, and that civilian court review was designed by Congress to be a narrow one that makes sure that Pentagon rules were followed, not the equivalent of court review of a criminal conviction in a regular appeals court proceeding..
Sorting out who is right in that controversy is now the task of the D.C. Circuit Court, at least initially, but the dispute is almost certain to wind up eventually in the Supreme Court. The newly released McGarrah declaration seems sure to figure prominently in the ongoing judicial review of detainee policy and procedures.
Continue reading "Analysis: The Pentagon's vast files on detainees" »
Round-Up
01:21 PM | Gretchen Sund | Comments (0)
Today, this editorial in the St. Petersburg Times asks Congress to reverse the damage caused by the Court's ruling in Ledbetter (via How Appealing).
Andrew Koppelman has this post at Balkinization discussing the Court's treatment of the Establishment Clause and the Free Exercise Clause.
At the WSJ.com Law Blog, Peter Lattman weighs in here on the High Court's proposed rule changes and has this post on Justice Ginsburg's dissents.
Lastly, in the current issue of The Economist, this article discusses recent books on the Supreme Court, including Jeffrey Rosen's latest, "The Supreme Court: The Personalities and Rivalries that Defined America."
More on the CVSG in False Claims Act qui tam Jurisdictional Issue
12:12 PM | Jason Harrow | Comments (0)
The following commentary is by Gary Thompson, an attorney in Akin Gump's DC office.
On Tuesday, the Court sent a pending case dealing with qui tam actions under the federal False Claims Act (“FCA”) to the Solicitor General's office for its views on the matter. At issue in the case, No. 06-1269, United States ex rel. Bly-Magee v. Premo, 06-1269, is whether the jurisdictional bar on qui tam actions based on "the public disclosure of allegations or transactions...in a congressional, administrative, or [GAO] report, hearing, audit, or investigation" encompasses disclosures by state and local governments or refers to disclosures only by the federal government.
The FCA is the federal government’s primary weapon to combat alleged fraud. Under the law, the federal government and private citizens (known as qui tam relators or whistleblowers) can file actions for treble damages and substantial civil penalties against any person alleged to have knowingly submitted false or fraudulent claims upon the government. Relators are entitled to receive up to thirty percent of the government’s recovery if the case is successful. However, the FCA also contains a specific jurisdictional bar designed to prevent whistleblowers from bringing qui tam actions based upon information already in the public domain unless they are an “original source,” -- i.e., they have direct knowledge of the alleged fraud and voluntarily provide the information to the government prior to filing suit.
Continue reading "More on the CVSG in False Claims Act qui tam Jurisdictional Issue" »
Pfizer seeks swift patent protection
11:05 AM | Lyle Denniston | Comments (0)
UPDATE Friday a.m.
Pfizer's petition filed Wednesday, now docketed as 06-1582, poses these questions: "(1) Whether the Federal Circuit's failure to reconsider its judgment under the KSR standard merits summarily granting the petition, vacating the judgment, and remanding for further consideration in view of KSR? (2) Whether, if the petition is not granted prior to September 25, 2007 -- when Pfizer's pediatric exclusivity for Norvasc comes to an end -- the Court should instead grant the petition and order the Court of Appeals' judgment vacated under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), and U.S. Bancorp Mortgage Co. v. Bonner Maill Partnership, 513 U.S. 18 (1994)." The motion for expedition asks the Court to decide during the current Term whether to grant and vacate the Circuit Court ruling, suggesting a briefing schedule that would be completed by June 16. "The relief that Pfizer seeks in its petition, a summary GVR order rather than a full review on the merits, is particularly susceptible to treatment in an expedited fashion," the motion argues. Pfizer told the Court that about $500 million in revenue would be at stake over the coming months if the Circuit Court ruling is vacated.Pfizer filed its motion to stay the Circuit Court with Chief Justice John G. Roberts, Jr., who normally is the Circuit Justice for the Federal Circuit. Roberts, however, has routinely recused himself from cases involving Pfizer. This application thus will be considered initially by the senior Associate Justice, John Paul Stevens; it is up to him whether to act alone or refer it to his colleagues.
(NOTE; Links to all of the filed documents are at the end of this post.)
The major drug maker, Pfizer Inc., in an emergency plea Wednesday, asked Chief Justice John G. Roberts, Jr., to block a Federal Circuit Court ruling that scuttled the company's patent rights on the main ingredient in its widely used Norvasc medicine for easing high blood pressure. The application (Pfizer v. Apotex, 06A1131) contends that the Circuit Court failed to apply the Justices' unanimous April 30 ruling overturning the appeals court's method of judging patentability. Besides asking for an immediate order to delay the Circuit Court ruling, Pfizer also filed a petition for review, and asked for expedited consideration of that, too.The Federal Circuit, Pfizer argued, has already put into effect its March 22 ruling that three claims on Pfizer's amlodipine besylate were invalid because their creation would have been obvious to specialists in the field. The patent claims cover the active ingredient in the most-prescribed anti-hypertension drug, one that Pfizer said earns it more than $150 million every month. The March 22 ruling, Pfizer said, applied the Circuit's prior formula for weighing whether a patent is valid because its invention was "obvious." Under patent law, an invention that is an outgrowth of earlier technology cannot be patented.
Pfizer had asked the Federal Circuit to reconsider its March 22 ruling. While that plea was pending, the Supreme Court at the end of April decided KSR International v. Teleflex, mandating a new way of examining the obviousness of an invention. Pfizer told the Federal Circuit about that ruling, but on May 21, over three judges' dissents, the Circuit Court refused to rehear the case. At the same time, at the request of Apotex, a generic drug maker, the Federal Circuit issued its mandate -- thus cutting off Pfizer's remaining monopoly under its patent claims.
Pfizer told the Chief Justice that Apotex, three days after the lower court denied reconsideration, launched a generic version of a drug with the same active ingredient as in Norvasc. Pfizer's own patent actually expired on March 25, it noted, but the company has gained an extension through Sept. 25 because it has undertaken tests to decide whether the active ingredient will be medically useful for children, too -- a pediatric extension allowed by federal law. That extended period, however, ended when the Federal Circuit put its ruling into effect, the company said.
"Issuance of the mandate essentially opens the door for Pfizer's competitors to begin releasing competing products, thereby depriving Pfizer of its remaining statutorily-guaranteed exclusively period," the application asserted.
The company's separate appeal asked the Supreme Court to grant review of the Federal Circuit's March 22 ruling, to vacate it, and then send the case back to the lower court to apply the KSR decision regarding obviousness to the Pfizer patents at issue.
Here are the cert. petition, motion to expedite, and motion to recall the mandate and stay proceedings.
Today at the Supreme Court: 6/1/07
09:38 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and opinions is Monday, June 4.
Thursday, May 31, 2007
Round-Up
07:47 PM | Gretchen Sund | Comments (0)
Yesterday, Robert Barnes hosted a discussion of the Court's decision in Ledbetter v. Goodyear Tire Co.; the transcript is available here. NPR's Nina Totenberg had this audio segment on "Morning Edition" yesterday; Tony Mauro reports here for the Legal Times; and Richard Thompson Ford has this piece at Slate.
The latest Supreme Court Memo from Linda Greenhouse discussing Justice Ginsburg's two oral dissents this Term is available here in today's New York Times; Ann Althouse has these thoughts on Greenhouse's column at Althouse.
This editorial, also in today's New York Times, encourages Congress to undo the Ledbetter decision and states that "in addition to interpreting the statute unreasonably and ignoring the relevant precedents, the majority blinded itself to the realities of the workplace." The Washington Post ran this editorial urging Congress to "move quickly to strike an appropriate balance" between employees' and employers' concerns.
At the BLT, Mauro has this post on the death of the petitioner, Mario Claiborne, who's sentencing case is pending before the Court; Doug Berman reports here at Sentencing Law and Policy.
In today's Washington Times, Suzanne Fields has this op-ed discussing Justice O'Connor's endeavor to improve civics education.
Lastly, Steve Vladeck has this post at Concurring Opinions discussing the significance of the Court's decision in Watters v. Wachovia Bank.
Circuit Court allows war crimes trials to begin
04:29 PM | Lyle Denniston | Comments (0)
In the wake of the Supreme Court's refusal on April 30 to hear the appeals of two Guantanamo Bay detainees now facing war crimes trials, the D.C. Circuit Court has ruled that it has no authority to stop those trials from opening next Monday. In a brief order on Wednesday, a three-judge panel denied a plea to postpone the trial of a young Canadian detainee. "This court is without jurisdiction to grant the requested relief," the order read.
The order, issued in Khadr v. Gates (07-1156), accepted in full the Bush Administration's argument that Congress has taken away the power of the federal courts to take any action involving the war crimes "military commissions," at least until after a trial is over and a guilty verdict reached on the charges. Attorneys for Omar Khadr, a 20-year-old who has been held by the U.S. military since he was 15, had argued that the Circuit Court clearly had the power to put off a commission trial until it could rule on whether a detainee had been validly classified as an "enemy combatant." Only a prisoner given that designation by the military can be tried for war crimes, under federal law.
The Circuit Court's only explanation of its finding that it had no jurisdiction to delay a war crimes proceeding was a citation to 10 U.S.C. 950-j-b. That is the provision in the new Military Commissions Act passed by Congress last fall specifying that no federal court (including the Supreme Court) may consider any claim about "the prosecution, trial, or judgment of a military commission" -- with the one exception that the D.C. Circuit may review an actual conviction that results.
Khadr was one of two detainees facing war crimes trials who had asked the Supreme Court to allow them to continue with their habeas challenge to the commission process. The other was Salim Ahmed Hamdan. The Supreme Court, over three Justices' dissents, declined to hear that case (Hamdan/Khadr v. Gates, 06-1169).
Hamdan's case is returning to the D.C. Circuit, with the two sides ordered to file briefs there by June 9 on what should happen next with that case. Khadr's attorneys on May 23 filed a petition for review in the D.C. Circuit, under the Detainee Treatment Act of 2005, seeking to challenge the military panel (Combatant Status Review Tribunal) that found him to be an "enemy combatant." Simultaneously, his attorneys asked the Circuit Court to postpone his war crimes trial until the Circuit Court concluded whether he was properly classified as a "combatant." That is the request the three judges denied Wednesday.
Both Khadr and Hamdan are scheduled to be arraigned -- that is, given a chance to offer a plea -- before military commissions at Guantanamo Bay, the U.S. military prison in Cuba, on Monday. An American Civil Liberties Union observer, Jameel Jaffer, will be relating what he sees and hears at those proceedings on a blog -- http://blog.aclu.org. Hamdan is charged with a terrorist conspiracy and with providing support to terrorist activity. Khadr is charged with murder, attempted murder, conspiracy, material support of terrorism, and espionage. He is accused of killing an American soldier with a grenade in Afghanistan in 2002, when he was 15.
Khadr's stay motion can be found here. The government's opposition to the stay is here, and Khadr's reply is here.
Claiborne has died, counsel tells Court
11:46 AM | Lyle Denniston | Comments (2)
UPDATE, 2 p.m. Michael Dwyer, assistant federal public defender in St. Louis, formally notified the Supreme Court on Thursday that Mario Claiborne had died. Dwyer's "suggestion of death" said that he had learned on Wednesday "that Petitioner Mario Claiborne died in St. Louis, Missouri, on May 30, 2007. Counsel does not know the exact cause of death and has not yet received official notice of Claiborne's death from any governmental source. Petitioner's mother confirmed his death to counsel. When Petitioner's counsel receives a death certificate, he will file it with the Court."
A 23-year-old St. Louis man identified by police there as Mario Claiborne was shot dead in an incident on city streets Tuesday, according to a story in the St. Louis Post-Dispatch newspaper. The federal public defender's office in St. Louis indicated that this is the same individual whose case testing U.S. Sentencing Guidelines has been awaiting a decision by the Supreme Court. That office would not give details because attorneys who had worked on the case were unavailable.
The case of Claiborne v. U.S. (docket 06-5618) was heard by the Court on Feb. 20, along with a second Guidelines case (Rita v. U.S., 06-5754). The cases were heard in tandem because they both test what sentence under the Guideline may be treated as "reasonable" when challenged on appeal. The Clairborne appeal asks whether a sentence below the Guideline range is presumed to be reasonable, while the Rita case asks whether a sentence within a Guideline range is presumed to be reasonable.
Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death. That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled -- unless the coming decision in the Rita case goes beyond the single issue presented there.
Claiborne was given a 15-month prison sentence for a cocaine possession crime, and that was below the minimum Guideline range of 37 months. The Eighth Circuit Court ordered a new sentencing, finding that a below-range sentence was unreasonable. Claiborne had been released pending the new sentencing.
If the deceased individual in St. Louis is, in fact, the same person as in the Court case, the Court is expected to be notified promptly of the death. Either side in the case may do so.
Practitioners' Reactions To Proposed Revisions To Supreme Court Rules - Part II
11:06 AM | Kevin Russell | Comments (0)
In a prior post, we described some of the comments made by some experienced Supreme Court practitioners on proposed revisions to the Court’s rules at a forum hosted by the Georgetown Supreme Court Institute. This post continues that report, addressing revisions relating to the time limits for filing merits and cert-stage amicus briefs.
Deadlines for Merits Briefs
Under the new rules, petitioners still have 45 days after cert. is granted to file their opening brief. The time for the respondent’s brief has been reduced by 5 days (from 35 to 30). More substantially, the time for filing a reply brief has been reduced by 10 days (from 35 to 25).Initially, there was also some discussion about whether any changes to the briefing schedule were needed in the first place. It was widely believed that the Court’s recent difficulties in filling its argument calendar are to blame – the Court has been required to expedite briefing in a number of cases this Term to fill empty argument slots in upcoming sittings. But some wondered whether it made sense to accelerate the briefing schedule in all cases to deal with that occasional problem.
Not surprisingly, it was the reduction in the time for the reply brief that caused the greatest comment and concern among practitioners. That reaction varied. Some noted that even under the Court’s proposed revision, parties still have more time to file reply briefs than is allowed in the courts of appeals (14 days). Some also noted that the number of issues that must be briefed in the Supreme Court is generally smaller than that in the courts of appeals, reducing the need for an extended briefing period.
Others, however, felt that the reduction in time was unfortunate, for many of the same reasons a number of people gave in favor of extending the page limits for reply briefs. They noted that petitioners’ counsel increasingly must use the reply brief to respond to an expanding number of amicus briefs filed in support of respondent, briefs that are getting longer and less overlapping. They also noted that in the Supreme Court – unlike the courts of appeals – counsel is often preparing for oral argument during the same time period in which the reply brief is being written (while the Supreme Court generally sets cases for argument a few weeks after briefing is completed, parties in the lower courts often wait for up to a year between briefing and argument).
Continue reading "Practitioners' Reactions To Proposed Revisions To Supreme Court Rules - Part II" »
Today at the Supreme Court: 5/31/07
08:40 AM | Jason Harrow | Comments (0)
The Court is holding a private Conference today to discuss new and pending cases. Our list of "Petitions to Watch" for this Conference can be found here.
Regular orders relating to today's Conference are scheduled to be released Monday at 10 AM eastern.
Wednesday, May 30, 2007
Round-Up
06:15 PM | Gretchen Sund | Comments (2)
In today's New York Times, Linda Greenhouse reports here on the Ledbetter ruling, making it more difficult for workers to sue employers for pay discrimination; Paul Secunda has these thoughts at the Workplace Prof Blog. Aaron Streett's latest Supreme Court Update, discussing yesterday's opinion and orders, is available here at Baker Botts. At the TaxProf Blog, Paul Caron has this post on the Court's decision to grant certiorari in CSX Transportation, Inc. v. Georgia Board of Equalization.
At the Harvard Law School Corporate Governance Blog, University of Denver Law Professor J. Robert Brown Jr. has this analysis of the recusals in the Stoneridge grant and the implications for the Court's consideration of the Fifth Circuit's Enron litigation.
Rick Hasen discusses the Sanchez v. City of Modesto appellate court case, in which the Modesto City Council has decided to file a cert. petition to the High Court, here at the Election Law Blog.
In the current issue of the New England Journal of Medicine, there are several articles discussing the Supreme Court's April Gonzales v. Carhart ruling, including: this article from George J. Annas discussing the constitutional law of reproductive liberty and the Court's recent Carhart decision; this perspective by R. Alta Charo entitled "The Partial Death of Abortion Rights"; this perspective from Michael F. Greene describing "the intimidating environment surrounding pregnancy terminations" as a result of the ruling; and this editorial by Jeffrey M. Drazen stating that "the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine."
Commentary: Cameras and inter-branch comity
04:37 PM | Lyle Denniston | Comments (4)
The blogosphere has been treated in recent days to a group of law professors of varying ideological preferences pronouncing it within Congress' constitutional powers (some even said "well within") to compel the Supreme Court to allow television coverage of oral arguments. Despite diligent searching, none of those academics has located a precedent that settles the matter, although a few cases have been mentioned suggestively. There is a brand-new lower court precedent, though, that makes the point that inter-branch modesty remains a virtue -- that is, there is a public good in avoiding meddling in another branch's inner workings.
The ruling came in Public Citizen v. U.S. District Court, released on Tuesday by the D.C. Circuit Court in Washington (docket 06-5232). It has to do with the avoidance of judicial meddline with legislative prerogative, and thus is not directly on point in the current debate about Congress' power to tell the Justices how to run their public sessions. But there is a constitutional principle here, and that may well have some relevance.
Continue reading "Commentary: Cameras and inter-branch comity" »
Invitation Brief in No. 06-457, Rowe v. New Hampshire Motor Transport Association & Final (?) CVSG Tally
03:58 PM | Amy Howe | Comments (0)
On Friday the SG’s office filed this brief recommending that the Court deny cert. in No. 06-457, Rowe v. New Hampshire Motor Transport Association. The SG’s brief in Rowe is also, in all likelihood, the last invitation brief that will be filed this Term; although we had previously indicated (in this post) that we expected a brief in No. 06-415, Selig v. Pediatric Specialty Care, last Friday was -- as we understand it -- the last day for the SG to file a brief and (if the normal timelines are followed) still have the case considered before the Court’s summer recess, and the Court’s electronic docket does not indicate that any such brief was filed. (Thanks to J.C. Andre for pointing this out.)
If (as we now expect) the brief in Rowe is indeed the last SG brief for the Term, the final score is six recommended denials and just one recommended grant (in No. 06-856, LaRue v. DeWolff, Boberg & Associates, which we discussed here). Although the Court normally accords substantial weight to the SG’s recommendations -- and it would thus seem likely that this group of CVSG cases would not be a significant source of new cases for the Court’s OT2007 docket -- the Court's need for cases could change the calculus considerably.
"Conference Call" Petitions to Watch: 5/31
02:09 PM | Jason Harrow | Comments (0)
The latest edition of "Conference Call" in Legal Times (column archive here; subscription req'd) featured petitions to watch for the Justices' Conference of 5/31. The SCOTUSblog supplement, containing downloadable versions of the highlighted petitions (and, thanks to the continuing assistance of those involved in the cases, a great many other cert. stage filings), can now be found here.
Previous editions of "Petitions to Watch" can be accessed via the "Term Tracker" link.
Test of state secrets privilege
10:46 AM | Lyle Denniston | Comments (1)
UPDATE June 4: The case has now been docketed as 06-1613.
UPDATE Thursday p.m.
The Constitution Project on Thursday released a report urging Congress to narrow the "state secrets" privilege that is at issue in the petition for review discussed in this post. The Project calls for new "statutory language to clarify that judges, not the executive branch, have the final say about whether disputed evidence is subject to the state secrets privilege." The full report is available at this link.UPDATE 5:05 p.m.
After some delay, the petition is now available for downloading; the link is below.Lawyers for a German citizen who has sued to challenge the government's secret program of overseas detention and interrogation of individuals it suspects have terrorist ties asked the Supreme Court on Wednesday to clarify and limit the so-called "state secrets" privilege. The Court has not ruled direclty on the scope of that evidentiary limitation since the 1953 case of U.S. v. Reynolds. If the Reynolds precedent now allows the government to shut down a lawsuit over secret operations before any evidence is even offered, that ruling should be reconsidered and narrowed, the appeal in El-Masri v. U.S. argues. The new petition, filed by the American Civil Liberties Union, can be downloaded at this site. The case has not yet been assigned a docket number.
The case involves Khaled El-Masri, who lives near Neu Ulm, Germany. He has been a carpenter and car salesman, but since late December 2003 has been caught up in an international diplomatic and legal controversy over the Central Intelligence Agency's "extraordinary rendition" program, and the part he involuntarily played in that activity. His lawsuit aimed at U.S. officials has been thrown out before it could proceed after the federal government invoked the "state secrets" privilege to stop it. Besides pursuing his lawsuit, El-Masri has asked the U.S. government for an apology "because I am an innocent man who has never been charged with any crime."
The petition raises this question: "Whether the Court of Appeals [Fourth Circuit] erred in affirmed the pleading-stage dismissal, on the basis of the evidentiary state secrets privilege, of a suit seeking compensation for petitioner's unlawful abduction, arbitrary detention, and torture by agents of the United States?"
Since the Reynolds decision 54 years ago, the petition argues, "the privilege has become nmoored from its evidentiary origins. No longer is the privilege invoked solely with respect to discrete and allegedly secret evidence; rather, the government now routinely invokes the privilege at the pleading stage, before any evidentiary disputes have arisen. Indeed, Reynolds' instruction that courts are to weigh a plaintiff's showing of need for particular evidence in determining how deeply to probe the government's claim of privilege is rendered wholly meaningless when the privilege is invoked before any request for evidence has been made."
The privilege is being invoked much more frequently by the government than in the past, the petition says. The result, it adds, is that the government "seeks effectively to transform it from an evidentiary privilege into an immunity doctrine, thereby neutralizing constitutional constraints on executive powers....In particular, since Sept. 11, 2001, the government has invoked the privilege frequently in cases that present serious and plausible allegations of grave executive misconduct" -- including, of course, El-Masri's case.
"Mr. El Masri's case," according to the petition, "provides a compelling example of the lower courts' acquiescence in the government's expansion of the privilege beyond its evidentiary foundation. In this case, the government sought outright dismissal of Mr. El-Masri's claims by invoking an evidentiary privilege before any evidence had even been requested. Indeed, the government's arguments were not evidentiary: the government did not, because it could not, invoke the privilege with respect to specific evidence." So, it simply relied on former CIA Director George Tenet's speculation about what might be offered, and the argument that no allegation could be confirmed or denied without harming national security. "Nothing in Reynolds emotely sanctions such a practice," the appeal contends.
Continue reading "Test of state secrets privilege" »
Today at the Supreme Court: 5/30/07
09:08 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and opinions is June 4.
Tuesday, May 29, 2007
New "Stat Pack"
07:39 PM | Jason Harrow | Comments (2)
You can now download an updated edition of the "Stat Pack" here.
If you have any suggestions for what other information should be included each week, email me here.
More on Today's Grant in No. 06-1164, John R. Sand & Gravel Co. v. United States
04:35 PM | Amy Howe | Comments (0)
In No. 06-1164, John R. Sand & Gravel Co. v. United States, in which cert. was granted today, the Court will consider whether the Tucker Act’s six-year statute of limitations is jurisdictional (and thus may not be waived by the parties).
In May 2002, petitioner John R. Sand & Gravel Co. filed a lawsuit against the United States in the Court of Claims, alleging that the EPA’s remediation work at a landfill effected a physical taking of its lease to mine sand and gravel at the site. The United States responded that JRS&G’s claims were time-barred. The Court of Claims agreed in part and entered judgment for the government on the remaining claims. On appeal, although the government did not challenge the timeliness of JRS&G’s remaining claims, an amicus raised the issue in its brief. Addressing the issue, the Federal Circuit held that the Tucker Act’s six-year statute of limitations is jurisdictional and cannot be waived. The court of appeals explained that the statute of limitations is “a condition that must be met for a waiver of sovereign immunity in a suit for money damages against the United States.” Because JRS&G’s takings claim accrued in February 1994, the court continued, it was time-barred and the Court of Federal Claims lacked jurisdiction to consider it.
After its petition for rehearing was denied, JRS&G sought certiorari. Today the Court agreed to review the jurisdictional question; the case is expected to be argued in the fall.
Round-Up: Today's Action
04:20 PM | Gretchen Sund | Comments (4)
David G. Savage of the LA Times reports here on the Supreme Court's 5-4 decision in Ledbetter v. Goodyear, "a victory for employers"; Bloomberg's Greg Stohr reports here; James Vicini of Reuters has this article on the ruling, which puts a six-month limit on pay discrimination lawsuits; at MarketWatch, Mark H. Anderson reports here.
The AP's Mark Sherman has this story on the decision, which broke along ideological lines; here at NPR, Dahlia Lithwick discusses the ruling with Alex Cohen on "Day to Day"; CNN Supreme Court Producer Bill Mears reports here on the ruling and Justice Ginsburg's "sharply worded" dissent; in the New York Times, David Stout has this article discussing the Court's opinion and noting that Justice Ginsburg "read part of her dissent aloud (itself an unmistakable sign of anger)"; the Washington Post's Robert Barnes has this article discussing the Court's ruling; Joan Biskupic reports here in the USA Today.
Scott Lemieux weighs in here at Tapped, the group blog of The American Prospect; Frank Steinberg has this post at the New Jersey Employment Law Blog; and the ACSBlog has this post. Ross Runkel discusses today's opinion here at Law Memo.
The Associated Press reports here on today's grants in three business-related disputes; Doug Berman has this post discussing today's action and a notable cert. denial in the Washington v. VanDelft sentencing case.
Round-Up: Other News
04:18 PM | Gretchen Sund | Comments (0)
In yesterday's New York Times, Linda Greenhouse's latest "Supreme Court Memo" column, available here, discussed statutory cases before the Supreme Court, Hackworth v. Progressive Casualty Insurance Company (a particular statutory case involving the Family and Medical Leave Act), and what these types of cases say about the Court's "ordinary life."
Peter Lattman has this post at the WSJ.com Law Blog on commencement addresses delivered over the weekend by Justice Roberts and Justice Alito. The AP reports here on Justice Alito's graduation address at Seton Hall University School of Law.
In today's Washington Post, Robert Barnes has this article on the interest in predicting the outcomes and authors of forthcoming Supreme Court opinions.
The latest Supreme Court Update from Aaron Streett of Baker Botts, analyzing last week's opinions and orders, is available here.
At the Securities Law Prof Blog, Barbara Black has this post on the "intense lobbying campaign to persuade the SEC to file an amicus brief" in Stoneridge v. Scientific-Atlanta and the Enron case, Regents of the University of California v. Merrill Lynch; Kara Scannell of the Wall Street Journal reports here on whether the SEC will back shareholders in these cases; and Peter Lattman has this post at the WSJ.com Law Blog.
On Sunday, this editorial in the New York Times praised bills addressing enforcement of the Clean Water Act, which was muddled by a June 2006 Supreme Court decision.
Lastly, at the Boston ERISA & Insurance Litigation Blog, Stephen D. Rosenberg has this post discussing the Solicitor General's brief in LaRue v. DeWolff, Boberg & Associates.
More on Today's Grant in No. 06-989, Hall Street Associates, L.L.C. v. Mattel, Inc.
03:52 PM | Amy Howe | Comments (0)
The Federal Arbitration Act provides that if a party seeks a judicial order confirming an arbitration award, a federal court must grant that order unless very specific (and limited) conditions are met. Thus, the statute provides, an arbitration award may be vacated only if “the award was procured by corruption, fraud, or undue means,” “there was evident partiality or corruption in the arbitrators,” the arbitrators were “guilty of . . . misbehavior” that prejudiced the rights of a party, or “the arbitrators exceeded their powers.” Are the narrow grounds outlined in the FAA the only basis for overturning an arbitration award, even if the parties to the arbitration agreement have agreed to other, broader grounds for vacating the award? The Court will consider this question in No. 06-989, Hall Street Associates, L.L.C. v. Mattel, Inc., one of four cases in which cert. was granted today.
The case has its origins in a property lease between petitioner Hall Street, the landlord, and respondent Mattel, Inc., which used the property in its toy manufacturing business. After the well water on the property became badly contaminated (no word on whether this resulted from Mattel’s manufacture of its short-lived “Toxic Barbie”), Hall Street filed suit in state court, and Mattel removed the case to federal court. The parties then entered into an agreement to arbitrate the case that provided for de novo judicial review of the arbitrator’s legal rulings, the district court approved that agreement, and the case proceeded to arbitration.
Although the arbitrator initially ruled in Mattel’s favor, the district court deemed one of its key conclusions “legally erroneous”; on remand, the arbitrator ruled in Hall Street’s favor. The case then returned to the district court, which (as relevant here) upheld the award. Both sides appealed to the Ninth Circuit, which reversed and remanded. In so doing, it relied on circuit precedent holding that the Federal Arbitration Act vests federal courts with only “an extremely limited review authority,” which private parties may not agree to expand. After additional litigation -- ultimately resulting in the denial of rehearing en banc – proved unsuccessful, Hall Street sought certiorari, alleging that the Ninth Circuit’s holding, while consistent with decisions of the Tenth Circuit, conflicted with the holdings of five other circuits and was also contrary with the “central purpose of the [Federal Arbitration Act]” – “enforc[ing] agreements to arbitrate according to their express terms.” Perhaps influenced by the fact (apparently not noted by Hall Street) that the circuit precedent on which the Ninth Circuit relied was authored by Judge Reinhardt, the Court granted review today. The case is expected to be argued in the fall.
Court To Decide Railroad Tax Dispute
03:40 PM | Kevin Russell | Comments (0)
Today the Supreme Court agreed to decide whether railroads can challenge states’ methods of valuing their assets for tax purposes under a federal statute that prohibits states from discriminating against railroads in imposing property taxes on their in-state operations. The case is CSX Transportation, Inc. v. State Board of Equalization, No. 06-1287.
The case involves the interpretation of a provision of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. 11501. That statute bars states from “[a]ssess[ing] rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.”
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More on Today's Decision in Ledbetter
02:59 PM | Jason Harrow | Comments (2)
The following analysis is by Tejinder Singh, a student at Harvard Law School and a summer associate at Akin Gump. Last year, as a summer associate at Howe & Russell, he assisted in the preparation of the petitioner's brief in this case.
Title VII of the Civil Rights Act prohibits employment discrimination on the basis of “race, color, religion, sex or national origin.” Employees suing under Title VII must (as relevant here) bring their claims no more than 180 days after “the alleged unlawful employment practice occurred.” In a 5-4 decision, authored by Justice Alito, the Supreme Court today delivered a victory for employers in discriminatory pay cases by holding that the unlawful decision to set an employee’s pay, rather than the subsequent issuance of a paycheck reflecting the earlier discrimination, counts as the “unlawful employment practice” for purposes of triggering Title VII’s limitations period.
[Note: For a more complete discussion of the facts, procedural posture, and the arguments in the briefs, see SCOTUSBlog’s argument preview here. For oral argument details, see the recap here.]
Petitioner Lilly Ledbetter worked for nineteen years at respondent Goodyear Tire & Rubber Company’s plant in Gadsden, Alabama. At the end of her career, her salary – the product of a series of annual raise decisions, ostensibly based on merit – was significantly (between fifteen and forty percent) lower than her male counterparts. Ledbetter filed an EEOC charge alleging, inter alia, sex discrimination with regard to her pay. She then sued in the U.S. District Court for the Northern District of Alabama, where she prevailed.
Continue reading "More on Today's Decision in Ledbetter" »
Today's Orders and Opinion
10:06 AM | Jason Harrow | Comments (0)
The opinion in Ledbetter is here.
The Order List is here.The grants are:
06-989 (Hall Street v. Mattel)
06-1164 (John R. Sand Gravel Co. v. US)
06-1287 (CSX v. Georgia State Bd. of Equalization)
06-9130 (Ali v. Federal Board of Prisons)[06-1269, US ex rel. Bly-Magee v. Premo, was CVSG'd.]
Court decides equal pay issue, grants 4 cases
10:03 AM | Lyle Denniston | Comments (0)
FINAL UPDATE 1:51 p.m.
The Supreme Court on Tuesday split 5-4 in rejecting a worker's claim of unequal pay, finding that the time for filing such a lawsuit under Title VII begins running with the original decision on a pay differential; there is no new violation each time a later paycheck is issued. Only a new and separate act of discrimination starts a new filing period, the Court decided. Justice Samuel A. Alito, Jr., wrote for the majority, and announced the decision -- the only ruling on the merits Tuesday. Justice Ruth Bader Ginsburg wrote for the dissenters, and announced their opinion orally. The case was Ledbetter v. Goodyear Tire (05-1074).In addition, the Court granted review of four new cases for decision at its next Term. The Court agreed to decide whether the federal law that protects railroads from discriminatory state taxes allows the carriers to challenge the state's accounting method for fixing the market value of their property (CSX Transportation v. Georgia State Board, 06-1287). The Justices also said they would rule on the duty of federal courts to defer to a contract agreement between the parties to have broad court review of any arbitration award (Hall Street Associates v. Mattel, 06-989). The Court also said it would rule on a jurisdictional issue involving the U.S. Court of Claims, testing whether the six-year statute of limitations on Tucker Act claims limits the Claims Court's reach (John R. Sand & Gravel v. U.S., 06-1164). The Court added review of a federal prisoner's rights case (Ali v. Federal Bureau of Prisons, 06-9130); that case involves a claim that prison officials lost an inmate's religious and personal belongings when he was transferred from one prison to another. The inmate's federal tort claim had been dismissed on the theory that a law enforcement officer's loss of private property was exempted from a federal tort claim because of "sovereign immunity."
The Court announced no action on a request to reconsider the denial of review of two major Guantanamo detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), or on a separate motion to defer that rehearing request while the detainees pursue limited remedies in the D.C. Circuit Court.
The Justices asked the U.S. Solicitor General to offer the federal government's views on the kind of public disclosure of misspent federal funds that will bar an individual or company from suing for recovery of the funds under the False Claims Act. The case is U.S. ex rel. Bly-Magee v. Premo, 06-1269). The issue is whether a false claim is barred if the problem with misspent federal funds had been disclosed earlier when the disclosure was made by a state or local government entity, not a federal entity such as Congress or a federal administrative agency. The Ninth Circuit ruled that the bar applies even if the disclosure was by a state and local agency, but its decision conflicts with other courts' rulings.
Among a long list of cases denied review Tuesday, the Court chose to bypass another attempt to test whether consecutive sentencing is covered by the series of Supreme Court rulings beginning with Apprendi v. New Jersey in 2000 limiting judges' power to impose enhanced sentences. The issue in Washington v. Vandelft (06-1081) was whether it violates the Sixth Amendment jury trial right if a judge rules that several sentences imposed by a jury must be served consecutively, based on an added factual finding made by the judge, not the jury. The Court may have opted not to hear this particular appeal because the other side argued in reply that the states that had conflicting laws or court opinions on the issue have changed their laws to end the conflict in approach.
Today at the Supreme Court: 5/29/07
08:30 AM | Jason Harrow | Comments (0)
The Court is scheduled to issue regular orders at 10 AM eastern and is also expected to release one or more opinions at that time. We will have coverage of both as soon as possible after they are made public.
Monday, May 28, 2007
Can Congress Mandate Cameras in the Courtroom?
06:49 PM | David Stras | Comments (19)
In line with the post this week discussing the Michigan Law Review symposium on cameras in the courtroom, see here, I thought I would add a few more thoughts on the issue. Most commentators in the blogosphere seem to assume that Congress has the plenary power to mandate that Supreme Court arguments be televised. With some hesitation, Orin Kerr said the answer seems to be "clearly yes," see here, and Ilya Somin.has stated that Article III, s 2, which says that the Supreme Court's "appellate jurisdiction" shall be exercised under "such regulations as the Congress shall make," provides the necessary constitutional hook for congressional power in this area. Even our own Marty Lederman has weighed in, arguing "that [mandating cameras in the courtroom is] well within Congress's power," though he recognizes that there is a "core" of judicial power that is not defeasible by statute. I am not sure of the ultimate answer to the question, but I suspect that there is more to Marty's brief comment on the Volokh Conspiracy, see here, than at first meets the eye.
As anyone familiar with my scholarship knows, I am not a huge fan of inherent powers in most contexts. But the Supreme Court stated as early as United States v. Hudson and Goodwin (the famous case that articulated the doctrine of legality in criminal law) that certain powers inhere in a court. The most recognizable of these powers are contempt, administration of the bar, and docket management. There are others, but a dominant theme emerges: the Court must be able to, in the words of Hudson, “[e]nforce the observance of order.”
Although there are not many Supreme Court cases that have addressed the outer bounds of the "core" of judicial power, if the Court meant what it said in Hudson, then it does not seem to be huge stretch to say that the issue of cameras in the courtroom falls within that "core" of judicial power that is not defeasible by statute. After all, the Court has repeatedly held that courts have the inherent power, for example, to hold parties in contempt to maintain order.
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Friday, May 25, 2007
Another step on Second Amendment appeal
05:28 PM | Lyle Denniston | Comments (4)
UPDATE: The D.C. government's motion for a stay indicates that an appeal to the Supreme Court would include these questions: "(1) whether the [Circuit Court] panel decision conflicts with the Supreme Court's decision in United States v. Miller (1939)...; (2) whether the Second Amendment protects firearms possession or use that is not associated with service in a State militia; (3) whether the Amendment applies differently to the District because of its constitutional status,...and (4) whether the challenged laws represent reasonable regulation of whatever right the Amendment protects." The motion sought a stay of the issuance of the Circuit Court mandate for the 90-day period open for Supreme Court review -- a period that began to run on May 8.
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The District of Columbia's local government has taken another step toward the Supreme Court in a major case on the Second Amendment and gun rights, and it has come under some pressure from an unusual source -- a federal judge -- to go ahead with the appeal. Laurence H. Silberman, a senior U.S. circuit judge who wrote an opinion relying on the Second Amendment in striking down the District's strict gun control law, has argued that District officials would be acting improperly if they did not now pursue an appeal.
This peculiar situation arose this week, after the District's lawyers had asked Silberman and two other judges on a D.C. Circuit Court panel to put on hold their ruling March 9 in Parker v. District of Columbia (Circuit docket 04-7041). The District said it may take the case to the Supreme Court and asked the judges to stay the issuance of their mandate to allow that. The panel did so on Thursday in a brief order, delaying the mandate until Aug. 7. That is the date by which the city would have to pursue an appeal to the Supreme Court (unless it sought and obtained an extension from the Supreme Court). The city gained no additional time from the Circuit Court to make up its mind, and the Circuit Court order probably will mean the city will have to act by the August date. But, with the stay, it can continue to enforce its gun law. (NOTE: Howard Bashman has posted a link to the Circuit Court order on his blog, How Appealing.)
All of that was not at all out of the ordinary, since the request for a stay had not been opposed by the local citizens who successfully challenged the District's gun law, and won the first federal appeals court ruling nullifying a gun control law on the theory that the Second Amendment protects an individual right to possess a gun in one's own home.
What was unusual was the additional gesture that Judge Silberman, the author of Parker, made. He issued a one-paragraph statement that said: "Although the District's motion for stay only indicates it 'may' petition for certiorari, since appellants did not object, I assume it is understood that the District intends to petition for review in the Supreme Court. If it did not so intend, in my view, it would be inappropriate for it to have sought the stay." That statement spoke only for Silberman, it appears.
As authority for his view, Silberman cited an order of the Seventh Circuit Court on July 15, 2002, in the case of Boim, et al., v. Quranic Literacy Institute, et al. (Circuit dockets 01-1969 and 01-1970). That is an important case recognizing civil damages liability in American courts for acts of terrorism abroad. The Holy Land Foundation for Relief and Development, which had lost that case in the Seventh Circuit, sought a stay of the mandate pending an appeal to the Supreme Court.
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A Symposium on "Cameras in the Court"
12:38 PM | Jason Harrow | Comments (3)
With this post, we welcome new SCOTUSblog contributor Ben Winograd, who will be joining Akin Gump and the SCOTUSblog team full-time next month. A recent graduate of Northwestern’s Journalism and Legal Studies Program, Ben has previously contributed to (among others) the Wall Street Journal’s Law Blog and will be a second-year at Georgetown University Law Center in the fall.
First Impressions, the online edition of the University of Michigan Law Review, posted a symposium on Wednesday probing the ever provocative (at least to SCOTUSblog readers) topic of televising Supreme Court public proceedings (it can be found here). The symposium comes four months after Senator Arlen Specter introduced legislation requiring the Supreme Court to permit television coverage of all open sessions, unless a majority of justices found doing so would violate the due process rights of one or more parties before the court. Senator Specter’s recent legislation is identical to a bill he submitted in 2005, which passed the Senate Judiciary Committee – then headed by Specter himself – but never reached a floor vote. Now chaired by Senator Patrick Leahy, the committee has discussed but not yet voted on Specter’s current bill, which is co-sponsored by three Democratic (Durbin, Feingold and Schumer) and two Republican (Grassley, Cornyn) senators.
By way of background, the current Justices have widely opposed televising their public proceedings over the years, perhaps none more famously than David H. Souter, who testified before Congress that any cameras entering the Court would have to “roll over my dead body.” (For a summary of the Justices’ public comments on the matter, click here.) In general, opponents offer four main arguments against televised coverage. First, they fear the media’s obsession with sound bites will lead to snippets from oral argument being taken out of context and unreflective of the true issues before the court. Second, opponents say the presence of cameras could lead to grandstanding by the advocates or even the Justices themselves. Third, opponents say televising oral arguments would demean the legal problems – if not jeopardize the due process rights – of parties before the court. Fourth, they say increased visual exposure could jeopardize the Justices’ safety.
The Michigan symposium provides seven essays – reflecting a variety of views – written by contributors from the academy, media, and legal profession, including a judge from the Sixth Circuit, a former Supreme Court clerk and a vice president of C-SPAN. While we encourage readers to read the symposium in its entirety (click here), we’ve summarized the arguments of each contributor below.
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Practitioners' Reactions To Proposed Revisions To Supreme Court Rules
09:57 AM | Kevin Russell | Comments (3)
As Lyle noted this prior post, the Supreme Court has proposed amendments to its Rules governing practice before the Court. On Thursday, the Georgetown Supreme Court Institute convened a meeting of some of the local members of the Supreme Court bar to discuss the proposed amendments. We thought the readers of this blog might be interested in hearing some of the ideas and concerns expressed at the meeting.
In general, I got the sense that, with a couple exceptions, the participants found the proposed changes welcomed and reasonable. Most of the discussion centered on minor concerns with some of the details and ways in which the revisions could be improved.
This post will discuss the new word limits, font requirements and electronic filing. Future posts will discuss changes in the filing deadlines, new rules governing cert-stage amicus briefs, and revised disclosure rules for amicus briefs.
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Los Angeles Appellate Associate
08:26 AM | Tom Goldstein | Comments (0)
This is just a quick note that our L.A. office, where most of the firm's appellate partners are located, is looking for an associate in the appellate group. The job involves very significant responsibility. Applications can be directed to me.
Today at the Supreme Court: 5/25/07
08:20 AM | Jason Harrow | Comments (0)
No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today from the Supreme Court. The next day for orders and opinions is May 29.
Thursday, May 24, 2007
Round-Up
07:46 PM | Gretchen Sund | Comments (1)
On WBUR's "Here & Now", University of Oregon Law Professor Garrett Epps discussed Justice Kennedy's crucial vote in the 5-4 decisions this Term in this audio segment.
In today's Wall Street Journal, University of Chicago Law Professor Richard Epstein has this commentary (subscription req'd) on the Twombly v. Bell Atlantic decision, in which "the U.S. Supreme Court began what might become a welcome revolution in civil litigation"; Steven Schwankert of IDG News Service reports here on the antitrust case online at PC World.
Tony Mauro has this post at The BLT highlighting this article, published in the Michigan Law Review, in which Sixth Circuit Court of Appeals Judge Boyce Martin Jr. "takes the justices to task for their 'Chicken Little' fear of allowing cameras to record and broadcast the Court's proceedings."
The Associated Press reports here on the City of Modesto's cert. petition asking the Supreme Court to review an election reform lawsuit filed by three Hispanic residents claiming at-large city council elections dilute their voting power (via Election Law Blog).
At Balkinization, Brian Tamanaha has this post responding to Justice O'Connor's comments during an interview (transcript available here; video here) last weekend on Fox News Sunday.
Online Essays About Massachusetts v. EPA
03:04 PM | David Stras | Comments (0)
The online publication for the Virginia Law Review, In Brief, features three essays about the impact of the Supreme Court's recent decision in Massachusetts v. EPA, see here. The essays are written by Ron Cass (Dean Emeritus of Boston University Law School), Jonathan Adler (Professor at Case Western Reserve Law School), and Jonathan Cannon (former General Counsel of the EPA during the Clinton administration and Professor at the University of Virginia Law School).
Three More Invitation Briefs
02:49 PM | Amy Howe | Comments (0)
The invitation briefs are pouring in – at least three that we’re aware of have been filed in the last day or so. If the Court had been hoping that it could alleviate the current shortfall in its OT2007 docket by filling it with cases in which the SG had recommended grants, it may have to come up with a Plan B: in each of the three cases, it has recommended that cert. be denied, bringing the SG's total number of recommended denials this spring to five, with just one grant recommended. (To be sure, however, although the SG’s recommendation generally carries significant weight at the Court, the justices may be slightly less deferential this year in light of the Court’s need to fill its docket for the fall.)
In its brief in No. 06-179, Riegel v. Medtronic, Inc., the government contends first that cert. is not warranted because the Second Circuit’s decision was correct: the FDA’s premarket approval of a medical device such as the one at issue here creates federal “requirements” that preempt state-law tort claims which rest on the manufacturer’s failure to satisfy state-law requirements. The government acknowledges that two courts – the Eleventh Circuit and the Illinois Supreme Court – have reached a contrary result, but it emphasizes that those courts could reconsider their holdings in light of the FDA’s 2004 conclusion (reversing course from the position taken by the Clinton administration in earlier litigation) that claims such as Riegel’s are preempted.
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