SCt Today

Greetings, sportsfans! Many are called but few are chosen. The Court sifted through nearly 2000 cert petitions in yesterday’s Long Conference and today granted 9 cases. The Court even returned its homework three days early—the end-of-summer orders list usually does not come out until the Friday before the First Monday (and sometimes as late as the First Monday in the more distant past). This tells us at least two things. First, since the Long Conference lasted no more than one day, the Roberts Court has not returned to the Burger Court practice of multi-day Long Conferences; rather, it is following Chief Justice Rehnquist’s lead in keeping the conferences relatively short and sweet. And second, the Court probably issued orders early so that it could expedite briefing in time to fill up its December argument calendar. Sure enough, the Court ordered an extremely expedited briefing schedule for 2 of today’s granted cases (Gonzales v. Duenas-Alvarez and Rockwell), with only 7 days for reply briefs. Fortunately, petitioners’ counsel in those cases are experienced Supreme Court hands—the SG and Maureen Mahoney, respectively—so they should be able to withstand the pressure. The rest of the cases will probably be argued in January.

Nothing earth-shattering on today’s grant list, just lots of statutory interpretation and potentially important cases on the dormant Commerce Clause and the First Amendment rights of labor unions. If you don’t see your favorite case on the list, all is not yet lost. The Court did not issue cert denials today, and it most likely re-listed several cases for consideration at next week’s conference. It’s also conceivable that the Court could issue a few more grants when it issues denials later this week or next Monday. Off to the cases . . .

United Haulers Assoc. v. Oneida-Herkimer Solid Waste Mgmt. Authority, 05-1345

If there is a case that sums up October Term 2006 so far, it is United Haulers. Petitioners tell us that this case is about the “virtually per se prohibition on hoarding solid waste.” More specifically, does a local flow-control ordinance that requires all solid waste to be processed at a publicly owned local facility violate the dormant Commerce Clause. The Second Circuit saw nothing wrong with Oneida’s unnatural attachment to its own solid waste, reasoning that any miniscule burden on interstate commerce was outweighed by the local benefits of the ordinance.

Zuni Public School District v. U.S. Department of Education, 05-1508

Adding to the Term’s soporific potential, this case’s first QP involves the proper formula to be used in determining whether school districts containing military bases or Indian reservations receive certain funding. Petitioner argues that the Secretary of Education used a formula that violates the Federal Aid Impact Act, 20 U.S.C. § 7709. The Tenth Circuit, eager to take a break from its cattle-with-brucellosis docket, took the case en banc, divided evenly, and thus affirmed the district court’s decision in favor of the Secretary. The Court granted cert over the SG’s opposition. It’s fairly safe to say that the second QP did not induce the Court to grant: “Is this one of the rare cases in which this Court should exercise its supervisory jurisdiction to correct plain error that affects all state school districts that educate federally connected children?” Interpretation: There is no circuit split, so please, please do it for the children. [NB: I think the “federally connected children” refers not to children of the Matrix, but to children on military bases and Indian reservations.]

Schriro v. Landrigan, 05-1575

Who is this Schriro guy anyway, and what does he have against criminals? But I digress . . . . This federal habeas case will address whether defense counsel renders unconstitutionally ineffective assistance by following the defendant’s instructions not to present mitigating evidence in the sentencing phase of a capital case. The en banc Ninth Circuit ruled for the capital defendant and vacated the death sentence. The Supreme Court has ruled for capital defendants in a string of failure-to-mitigate cases in recent years, most recently the 5-4 decision in Rompilla v. Beard (2005). But none of those cases involved a defendant clearly instructing his attorney not to present certain evidence. All eyes will be on Justice Alito to see if his replacement of Justice O’Connor—the 5th vote in Rompilla —heralds a more prosecution-friendly Court in capital cases. Perhaps a slight ray of hope for criminal defendants can be found in Justice Alito’s maiden opinion last Term in Holmes v. South Carolina (2006), which vacated a capital-murder conviction and death sentence.

Davenport v. Washington Education Assoc., 05-1589/ Washington v. Washington Education Assoc., 05-1657 (consolidated)

Cert to the Washington Supreme Court’s decision striking down a state law that forbids a labor union from using nonmembers’ agency shop fees for political purposes, unless it first obtains affirmative consent from the nonmember. The Washington Supreme Court held that the law violated a union’s First Amendment right to expressive association because it unduly burdens the unions by requiring them to obtain affirmative authorization. Petitioners find it hard to believe that a union has any First Amendment right to speak on behalf of nonmembers. I suspect the Supreme Court will agree, perhaps unanimously (recall last Term’s surprisingly unanimous associational-rights decision in the Solomon Amendment case). This is definitely the most important case on this week’s orders list.

Gonzales v. Duenas-Alvarez, No. 05-1629

Chapter Two in this Term’s continuing quest to determine what constitutes an “aggravated felony” for which an alien may be immediately deported (or “removed” in the newer, gentler statutory parlance). The Immigration & Nationality Act, 8 U.S.C. 1101(a)(43)(G), says that a “theft offense” is an aggravated felony. This case will decide whether merely aiding-and-abetting a theft is enough for a return trip across the border. The Ninth Circuit says no. The SG and other circuits say yes. 

Safeco Insurance Co. v. Burr, 06-84/Geico General Insurance Co. v. Edo, 06-100 (consolidated)

The Fair Credit Reporting Act holds companies liable for statutory and punitive damages if they “wilfully” violate the Act. In the lead case below, Judge Reinhardt held that “reckless disregard” of the Act’s provisions is tantamount to wilfulness. Other circuits have held that wilfulness means that a company actually knew it was violating the Act.

Sinochem International Co. v. Malaysia Int’l Shipping, 06-102

A civil procedure junkie’s dream, involving a question that has split the circuits in the wake of Steel Co.: Whether a federal court must first determine that it has personal and subject matter jurisdiction before it may dismiss a case for forum non conveniens. If that doesn’t get your heart pumping, you’re reading the wrong newsletter. Either way this case comes out, it will be assured a prominent spot in federal jurisdiction textbooks for years to come. And either way, it will probably be written by Justice Ginsburg, the Court’s undisputed queen of civil procedure in recent years.

Moylan v. Camacho, 06-116

Another case from the Supreme Court’s Guam error-correction docket. This case involves a dispute between the Attorney General and Governor of Guam regarding the proper interpretation of the Guam Organic Act’s debt limitation provision, 48 U.S.C. 1423a. And if that isn’t esoteric enough, the Court also ordered briefing on this odd-sounding, additional question: Whether the time for filing a cert petition in the Supreme Court was tolled while a cert petition was pending before the Ninth Circuit. You see, before 2004, decisions of the Guam Supreme Court were reviewed by writ of certiorari in the Ninth Circuit. To paraphrase Justice Blackmun, “Poor Guamians!”  While a Ninth Circuit cert petition was pending in this case in 2004, Congress remedied this injustice and provided for cert review in the Supreme Court. However, the Ninth Circuit waited until 2006 to dismiss the pending cert petition under the new statute. The question, therefore, is whether the 90 days for seeking Supreme Court review was suspended while the cert petition was pending for two years in the Ninth Circuit. Preliminary reports indicate lines stretching onto First Street to hear oral argument in this one. 

Rockwell International v. United States, 05-1272

Cert to the Tenth Circuit in this False Claims Act case. Petitioner Rockwell operated a nuclear weapons plant on behalf of the Department of Energy. A Rockwell employee brought a qui tam action on behalf of the United States under the FCA, claiming that Rockwell defrauded the government regarding the environmental safety of Rockwell’s production of “pondcrete”—a mixture of—I’m not making this up here—cement and toxic sludge made from nuclear waste. (Hopefully not coming soon to a sidewalk near you!) The FCA, 31 U.S.C. 3730(e)(4)(B), requires that a qui tam relator must establish that he is the “original source” of the information on which his FCA claim is based. That is, he must show that he had “direct and independent knowledge” of that information. The Court granted cert to clear up confusion in the circuits over precisely how direct and independent that knowledge must be. The Court refused cert on the splitless but interesting question of whether the FCA violates the Constitution’s Appointments Clause and Take Care Clause by allowing a private individual to litigate on behalf of the executive branch. The Court previously noted, but declined to decide that issue in Vermont Agency of Natural Resources v. United States ex rel Stevens (2000).

Until next time, that’s today’s baseball. 

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts L.L.P.; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Free paperback copy of the Guam Organic Act to 100th customer.

If you would like to subscribe to these updates, or, more to the point, unsubscribe, please send an e-mail to .