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Greetings, Court Fans!

We’re barely a week into the new Term, and already we have our first ruling in an argued case – though the per curiam ruling in Board of Education of the City School District of New York v. Tom F. (06-637) itself offers very little of note. The one-sentence opinion states that the Justices split 4-4 (Justice Kennedy, ever the indispensable Justice, did not participate), thus affirming the Second Circuit’s ruling that parents of a disabled child are entitled to reimbursement of private-school tuition even if he or she has not previously received public special education services. The relevant provision of the Individuals with Disabilities Education Act (IDEA) provides for reimbursement for a child who “previously received special education and related services under the authority of a public agency,” but the Second Circuit nevertheless held that reimbursement for a child who has not received public assistance was still appropriate given the overall purpose of IDEA. The Court’s opinion does not indicate how the Justices split, but it’s probably safe to assume that the more conservative Justices followed the text of the statute, while the more liberal Justices adopted the Second Circuit’s sense of its spirit. That interpretation will stand for now, though the Court still has on its docket a similar case from the Second Circuit that it had been holding pending Tom F. (and in which Justice Kennedy might be able to take part and add to his streak of being in every 5-4 majority).

Otherwise, the big news from the week was the Court’s second order list, in which it took no new cases and denied cert in several hundred more cases that had piled up over the summer. Of these denials, the most significant came in El-Masri v. United States, which challenged the CIA’s program of “extraordinary rendition,” or sending suspected terrorists captured abroad to other countries with more aggressive interrogation practices. The CIA had successfully scuttled the suit in the Fourth Circuit by claiming that the case involved “state secrets,” and the Court declined to take up that issue, which it last addressed in the 1950s. There is another state-secrets petition on the Court’s docket – this one challenging the NSA’s secret eavesdropping program – but as there were no recorded dissents on El-Masri, we’ll have to see how that one fares.

Otherwise, the Court heard arguments in only three cases this week: Watson v. United States, which asks whether the receipt of an unloaded gun as payment for drugs counts as “use” of a firearm in a drug offense that triggers a longer sentence; Stoneridge Investment v, Scientific-Atlanta, Inc., which asks whether a company can be sued under securities laws for entering into a transaction designed solely to inflate another company’s financial statements, but where the first company itself made no public statements about the transaction; and Medellin v. Texas, which concerns the President’s authority to force states to comply with a U.S. treaty obligation to give effect to a decision of the International Court of Justice. This last argument was particularly juicy, with the Court allowing argument to run almost ninety minutes and with numerous Justices expressing unease about the President’s allowing an international body to intrude upon U.S. law.

And with that, week two of the new Term is over. We’ll be back next week with any new rulings or grants. Until then, thanks for reading!

 

Ken & Kim

 

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400