Order List

September 28, 2006 Supreme Court Update

Greetings, Court Fans, and welcome back for another Term of the Supreme Court Update!
As hard as it is to believe, fall is upon us, and the Court is set to open the second Term of the Roberts era next week. As in past Terms, when the Court issues an order or opinion, we will send an e-mail summarizing the highlights to give you a way to follow the Court with a minimal investment of time. Hopefully, you will find these updates to be a user-friendly (and maybe even enjoyable) way to keep up with the Court.
The October 2006 Term has a few potential blockbuster cases looming, such as a challenge by parents and students to two voluntary desegregation plans for K-12 schools, and two cases concerning the constitutionality of the federal ban on partial-birth abortion. On Tuesday, the Court added to its docket by granting cert in nine new cases from its "long conference" before the start of the Term; we expect a lengthy order list denying cert in many hundreds of other cases by the end of the week. Given the large number of grants on the order list, we'll dispense with the verbiage and get right to the questions presented:
United Haulers Ass'n v. Oneida-Herkimer Solid Waste (05-1345): The Court continues its string of recent Commerce Clause cases, but this one doesn't sound quite as appealing as the wine case from two Terms ago. It concerns: (1) whether the virtually per se prohibition against "hoard[ing] solid waste" recognized in C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 392 (1994), is inapplicable when the "preferred processing facility" is owned by a public entity; and (2) whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so "insubstantial" a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a "minimal" local benefit.
Zuni Public School District No. 89 v. Dep't of Education (05-1308) deals with a decision to reduce federal "impact aid" to a local school district containing a sizable, nontaxable Indian reservation. It asks (verbatim): Whether the Secretary [of Education] has the authority to create and impose his formula over the one prescribed by Congress and through this process certify New Mexico's operational funding for fiscal year 1999-2000 as "equalized," thereby diverting the Impact Aid subsidies to the State and whether this is one of the rare cases where this Court should exercise its supervisory jurisdiction to correct a plain error that affects all State school districts that educate federally connected children.
Rockwell International v. United States (05-1272) sounds like a fairly important False Claims Act case: Whether the Tenth Circuit erred by affirming the entry of judgment in favor of a qui tam relator under the False Claims Act, based on a misinterpretation of the statutory definition of an "original source" set forth in 31 U.S.C. § 3730(e)(4)?
Schriro v. Landrigan (05-1575) deals with mitigation evidence in capital sentencing. The questions are: (1) In light of the highly deferential standard of review required in this case pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, did the Ninth Circuit err by holding that the state court unreasonably determined the facts when it found that Landrigan "instructed his attorney not to present any mitigating evidence at the sentencing hearing"? (2) Did the Ninth Circuit err by finding that the state court's analysis of Landrigan's ineffective assistance of counsel claim was objectively unreasonable . . . notwithstanding the absence of any contrary authority from this Court in cases in which (a) the defendant waives presentation of mitigation and impedes counsels attempts to do so, or (b) the evidence the defendant subsequently claims should have been presented is not mitigating?
Davenport v. Washington Education Ass'n (05-1589) and (somewhat confusingly) Washington v. Washington Education Ass'n (05-1657) ask: (1) Do labor union officials have a First Amendment right to seize and use for politics the wages of employees who have chosen not to become union members? (2) Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the First Amendment rights of labor unions?
Gonzales v. Duenas-Alvarez (05-1629) refreshingly asks a simple question: Whether a "theft offense," which is an "aggravated felony" under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G), includes aiding and abetting.
Safeco Insurance Co. v. Burr (06-84) asks: Whether the Ninth Circuit erred in holding that a defendant can be found liable for a "willful" violation of the Fair Credit Reporting Act ("FCRA") upon a finding of "reckless disregard" for FCRA's requirements, in conflict with the unanimous holdings of other circuits that "willfulness" requires actual knowledge that the defendant's conduct violates FCRA. It is consolidated for argument with Geico General Insurance Co. v. Edo (06-100), which asks a similar question plus one more: Whether the Ninth Circuit improperly expanded § 1681m of FCRA by holding that an "adverse action" has occurred and notice is required thereunder, even when a consumer's credit information has had either no impact or a favorable impact on the rates and terms of the insurance that otherwise would have been offered or provided?
Sinochem International v. Malaysia International Shipping (06-102) is destined for the next edition of your civil procedure and federal jurisdiction casebooks, as it will hopefully answer this question: Whether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens.
Moylan v. Camacho (06-116) offers what promises to be a fascinating look at governance in everyone's favorite unincorporated territory, Guam ("Where America's New Millennium Begins!" -- or so says the official web site above two photos of island life circa 1920). Guam's AG is fighting its President on this issue: Whether the Supreme Court of Guam erred in interpreting the phrase "aggregate tax valuation" in the Guam Organic Act's debt-limitation provision, 48 U.S.C. § 1423a (emphasis added), as tying the limit on borrowing by the Guam territorial government to the full value of property on Guam rather than to the assessed value used for purposes of taxation.
Perhaps feeling the pressure to make up for the relative dearth of cert grants last Term, the Court issued a fairly expedited briefing schedule in some of these cases to fill up its December argument calendar – leaving room for more cases to be heard in the spring. We'll see whether the Chief can achieve his goal of hearing more cases per Term as time goes on.
That's all for now – the Court opens the new Term officially on Monday (with arguments starting Tuesday), so we'll be back in your inbox soon. 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