Intel Corp. v. Advanced Micro Devices, Inc. (02-572), Pliler v. Ford (03-221), Aetna Health Inc. v. Davila (02-1845), Hiibel v. Sixth Judicial District Court of Nevada (03-5554) and order list

June 22, 2004 Supreme Court Update

Greetings Court fans!
The Court issued four opinions and an order list yesterday. That leaves 12 cases to go, including most of the big cases for this Term. Let's get right to the opinions.
First, in Intel Corp. v. Advanced Micro Devices, Inc. (02-572), the Court issued its interpretation of 28 USC 1782(a). That statute provides that a district court "may order" a person to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person." In this case, AMD filed an antitrust complaint against Intel with the European Commission (the European Union's chief antitrust enforcement body). To buttress its complaint in the EU, AMD petitioned a US district court for an order under Section 1782 directing Intel to produce documents that it had produced in a previous antitrust suit. This petition raised several questions about the applicability of Section 1782. In an opinion by Ginsburg (for everyone but Scalia and Breyer), the Court answered four of those questions, and offered guidance for district courts faced with petitions under that Section. (O'Connor was recused in this case.) (Before summarizing the Court's conclusions, I note one bit of trivia, especially for my law-professor friends: Ginsburg's opinion cited three law review articles by the same law professor, Hans Smit. I don't recall many opinions that rely that heavily on academic articles, much less three separate articles by the same professor.)
In general, the Court's conclusions reject categorical limits on the authority of district courts under Section 1782, preferring instead to leave appropriate application of that Section to the district court's discretion. The Court's conclusions are as follows: (1) "Interested person" under the statute is not limited to foreign sovereigns, and in this case includes AMD, who does not even have the status of "litigant" in the European Commission case. The fact that the statute's caption suggests it is limited to "litigants" does not control. Complainants before the European Commission (such as AMD) have sufficient rights in the process to qualify as "interested persons." (2) The European Commission qualifies as a "foreign or international tribunal" under the statute, even though it is not a judicial body. (3) Section 1782 does not limit its assistance to "pending" matters, and so the fact that the Intel case is still in the investigation stage has no bearing on the reach of Section 1782, so long as a dispositive ruling by the Commission is "within reasonable contemplation." In reaching this conclusion, the Court noted that Congress had specifically deleted the word "pending" from the statute in 1964. (4) Section 1782 does not incorporate a "foreign-discoverability rule." That is, it does not bar a court from ordering production of documents that would not be discoverable if they were located in the foreign jurisdiction. The statutory language and legislative history contain no such restriction, and if Congress had intended such a restriction, it would certainly have said so. Similarly, the statute does not require courts to limit discovery to those documents that would be discoverable in domestic litigation analogous to the foreign proceeding.
After announcing these conclusions, Ginsburg noted that a court is not required to grant Section 1782 discovery applications. To guide courts in their exercise of discretion under this section, Ginsburg highlighted several factors that should shape that discretion (e.g., whether the party from whom discovery is sought is a participant, nature of the proceedings abroad, receptivity of the foreign tribunal to US assistance, etc.) Scalia penned a one paragraph concurrence. He agreed with Ginsburg's conclusion, but couldn't join her opinion because it relied on legislative history. Breyer dissented. He believes that the court should read the statute to impose categorical limits on district courts because discovery, and discovery-related disputes, are very expensive.
Next, in Pliler v. Ford (03-221), the Court reversed a Ninth Circuit decision that had required district courts to issue specific warnings to pro se petitioners before dismissing their "mixed" habeas petitions. A "mixed" habeas petition contains both exhausted and unexhausted claims, and under Rose v. Lundy, must be dismissed. Since 1996, however, there has been a one-year statute of limitations for habeas claims, and thus if a petitioner (such as Ford) files a mixed petition, the dismissal of his petition could result in the loss of all his claims -- including exhausted claims -- if the limitations period expires while he pursues his claims in state courts. To avoid this result, courts across the country have adopted a "stay and abeyance procedure," in which they (1) dismiss unexhausted claims from the original petition, (2) stay the remaining claims pending exhaustion of the dismissed claims in state court, and (3) after exhaustion, allow amendment of the habeas petition to add the newly exhausted claims. In this case, the Ninth Circuit held, with respect to this procedure, that before dismissing Ford's mixed habeas petition, the court should have told him (1) that it could not consider a stay motion unless he first dismissed the unexhausted claims, and (2) that if he elected to dismiss his entire petition and return to state court, his federal claims would be time barred absent cause for equitable tolling.
The Supreme Court (opinion by Thomas for himself, the Chief, O'Connor, Scalia, and Kennedy) reversed the Ninth Circuit. The basic rationale for the opinion is that district courts are not obliged to act as counsel for pro se litigants. To do so would undermine a district court's role as impartial decisionmaker. Moreover, the warnings themselves could be misleading. That's just about it for the analysis. O'Connor concurred. She noted that the propriety of the stay-and-abeyance procedure -- a procedure adopted in at least seven of the circuits -- was not before the Court, and further noted that on remand, the Ninth Circuit should consider whether there were grounds for equitable tolling in this case. Stevens concurred, joined by Souter. While he agrees with the dissents, he believes that the outcome in this case (remand for further proceedings on the applicability of equitable tolling) is the proper one. Ginsburg (joined by Breyer) dissented. She thinks the Court should have reviewed the propriety of the stay-and-abeyance procedure. Breyer also dissented. He believes not only that the Court should have addressed the stay-and-abeyance procedure, but also that the Court should have approved that procedure.
Next, in Aetna Health Inc. v. Davila (02-1845), the Court held that certain claims against a health insurer were completely preempted by ERISA. Respondents filed suit against their health insurance companies claiming that those companies had refused to cover certain medical services in violation of Texas state law. The insurance companies removed these cases to federal court, but the Fifth Circuit held that removal was improper because the claims did not fall within ERISA's scope. The Supreme Court (unanimous opinion by Thomas) reversed. A case is removable to federal court if it could have been filed in federal court in the first instance, but as every first-year law student knows, a case falls within a federal court's federal question jurisdiction only if the federal question appears on the face of a "well-pleaded complaint." The respondents' complaints pleaded only state law causes of action, and so were removable only if they fell within the exception to the well-pleaded complaint rule: When a federal statute wholly displaces the state law cause of action through "complete preemption," the state claim can be removed. ERISA is one of those federal statutes that wholly displaces state law, and thus the question here is whether the state law cause of action is within the scope of ERISA's civil enforcement scheme. And the answer to that question, according to the Court, is yes. ERISA Section 502(a)(1)(B) provides a cause of action for a participant to recover for benefits due to him under the health insurance plan. A claim for denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA plan, and where no legal duty independent of ERISA is violated, is a claim that falls within this section. Respondents' suits fit this pattern. They complain about denials of coverage promised under regulated employee benefit plans. Any liability on the part of the health plan derives entirely from the particular rights of the health plan, and thus these claims fall within ERISA's civil enforcement scheme. ERISA completely preempts them, and they are removable. The rest of the opinion explains why the Court of Appeals came to
wrong conclusion, but since I've said enough about this ERISA case, I'll skip this part. Ginsburg (joined by Breyer) concurred. She believes that the outcome of this case is correct in light of the Court's jurisprudence, but believes that Congress needs to step in to fill gap in ERISA's remedial scheme, namely that while federal law preempts virtually all state law remedies, very few federal substitutes are provided.
Finally, in Hiibel v. Sixth Judicial District Court of Nevada (03-5554), the Court held that a Nevada statute requiring a person to identify himself when detained by an officer under suspicious circumstances does not violate the Fourth or Fifth Amendments to the Constitution. In response to a telephone call reporting an assault at Hiibel's location, a police officer asked Hiibel to identify himself. When he refused, he was arrested, and ultimately convicted, for failing to identify himself. In a 5-4 decision, the Court (opinion by Kennedy for himself, the Chief, O'Connor, Scalia and Thomas) affirmed his conviction. Kennedy began by tracing the history and roots of the "stop and identify" statutes, and the constitutional limits (due process, Fourth Amendment) imposed on those statutes. After this historical review, Kennedy turned to whether the statute at issue violated the Fourth Amendment. It does not, according to Kennedy, because a request for identification does not, by itself, constitute a seizure for Fourth Amendment purposes. Moreover, obtaining a suspect's name during a Terry stop (a stop for reasonable suspicion) serves important governmental purposes. Although prior cases have suggested that Terry-stopped individuals do not need to reveal their names, those cases are not controlling. Similarly, the stop and identify statute does not violate the Fifth Amendment. That amendment protects against self-incrimination, but the act of revealing your name is not generally incriminating. Stevens dissented. He would find that the statute violates the Fifth Amendment. Breyer (joined by Souter and Ginsburg) also dissented. He reads prior cases to provide that an individual who is stopped in a Terry stop does not have to respond to any police interrogation.
That's all for the opinions. From the order list, the Court granted cert in the following cases:
1. Whitfield v. United States (03-1293) and Hall v. United States (03-1294): These cases ask whether the commission of an overt act is an element of the crime of conspiracy to commit money laundering under 18 USC 1956(h).
2. Shepard v. United States (03-9168): I'm not sure what the precise question presented is, but from a review of the lower court opinion, it looks like the Court will consider the definition of "violent felony" under the Armed Career Criminal Act and what kinds of materials (e.g., police reports?) the courts may consider to determine whether a particular state law crime qualifies as a violent felony.
That's all until Thursday, when the Court is scheduled to hand down more opinions. 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.