Publications

The Court issued an order list on Friday, and as you might have noticed, this is a slight change from the normal procedure of releasing order lists on Mondays. In January, as they struggle to fill the remaining slots in this Term, they issue order lists with any cert granteds on Fridays immediately after their conferences. This gives the parties a few more days to get their briefing done before the end of the Term. I’m not quite sure that 3 days has any real impact on briefing, but they do it nonetheless. So, what did they grant? Five cases, including another terrorism case:

1. Hamdi v. Rumsfeld (03-6696): Of course, this was the big news from the order list. Hamdi is an American citizen who was captured in Afghanistan, and the question under review is the legality of his detention by the military. The SG had asked the Court to hold off on considering this petition until they file a petition in a similar case out of the Second Circuit (Padilla), but the Court granted the petition anyway. As phrased by the SG, this is the question presented: Whether the court of appeals erred in holding that respondents have established the legality of the military’s detention of Hamdi, a presumed American citizen who was captured in Afghanistan during the combat operations in late 2001, and was determined by the military to be an enemy combatant who should be detained in connection with the ongoing hostilities in Afghanistan.

2. Norfolk Southern Rwy. Co. v. Kirby (02-1028): Just when you think the Court takes only fun cases, they go and take a case that involves “freight forwarders.” Here are the questions presented: (1) Is cargo owner that contracts with freight forwarder for transportation of goods to destination in US bound by contracts that freight forwarder makes with carriers to provide that transportation? (2) Does federal maritime law require that terms of bill of lading extending liability limitations under Carriage of Goods by Sea Act to “independent contractors” used to perform contract of transportation must be narrowly construed to cover only those independent contractors in privity of contract with bill’s issuer?

3. Cooper Industries v. Aviall Services (02-1192): This is a CERCLA (Superfund) case, so will likely be of interest to all environmental lawyers: May a private party who has not been subject of underlying civil action under CERCLA 106 or 107 bring an action seeking contribution under CERCLA 113(f)(1) to recover costs spent voluntarily to clean up properties contaminated by hazardous substances?

4. Pliler v. Ford (03-221): This is a habeas case primarily about “mixed” petitions, i.e., those petitions that contain both claims that have been fully exhausted and those that have not been exhausted. It asks 2 questions. The first question is whether, before dismissing a “mixed” petition, the district court must inform the petitioner about the possibility of staying the petition pending exhaustion of all claims and about the statute of limitations. The second question is whether a second, untimely habeas petition can relate back to the first petition when the first petition was dismissed and the first proceeding is no longer pending.

5. KP Permanent Make-Up Inc. v. Lasting Impression (03-409): A trademark case out of the Ninth Circuit: Does classic fair use defense to trademark infringement require party asserting defense to demonstrate absence of likelihood of confusion, as is the rule in the Ninth Circuit, or is fair use an absolute defense, irrespective of whether or not confusion may result, as is the rule in other circuits?

That’s all for now. The Court will hand down another order list on Monday, and likely hand down opinions Tuesday and/or Wednesday. Until then, thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.