Publications

Greetings, Court fans!

It has been a pretty uneventful pre-holiday week. The Court granted cert in three new cases. In the most noteworthy, Ontario, CA v. Quon (08-1332), a SWAT team employee of the city felt that his privacy was invaded when the city viewed sexually explicit text messages he sent to his girlfriend on an employer-provided pager. The Court granted cert to address whether the employee had “a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers”; whether “individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer”; and whether “the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used ‘less intrusive methods’ of reviewing text messages transmitted by a SWAT team member on his SWAT pager.”

In Robertson v. United States (08-6261), the Court granted cert limited to the issue of “[w]hether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.”

Finally, in Carachuri-Rosendo v. Holder (09-60), the Court will address what it means to be “convicted” of an “aggravated felony” under 8 U.S.C. § 1229b(a)(3), which provides that a lawful permanent resident who has been so convicted is ineligible to seek cancellation of removal. Specifically, the Court will decide “[w]hether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been ‘convicted’ of an ‘aggravated felony’ on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.”

The Court also invited the SG to weigh in on Thompson v. North American Stainless, LP (09-291), a case raising the issue of whether “Section 704(a) of Title VII forbid[s] an employer from retaliating for [certain protected] activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity”; and, if so, if “that prohibition [may] be enforced in a civil action brought by the third party victim.”

The Court also summarily disposed of Indiana State Police Pension Trust v. Chrysler LLC (09-285), the last remaining challenge to the Chrysler bankruptcy, vacating as moot the Second Circuit’s ruling endorsing a reorganization-bypass method to save the company. The plaintiffs had protested that Chrysler was evading its obligations to creditors under a Chapter 11 reorganization by using the quick-sale option under Section 363 of the Bankruptcy Code. In vacating the Second Circuit’s ruling as moot, because the sale had been completed, the Court knocked out the precedential value of the appellate court’s ruling for bankruptcy cases, without necessarily disagreeing with its holding.

This may well be it until January. If so, Happy Holidays to you all!

Kim

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400