Order List

October 2, 2006 Supreme Court Update
Greetings, Court Fans!

Today the Court officially opened the October 2006 Term, but oral arguments will not start until Tuesday. This week's arguments will not exactly be scintillating, unless you're a criminal practitioner or a statutory interpretation junkie. Tuesday brings Lopez v. Gonzalez and Toledo-Florez v. United States, which ask whether, if a state felony drug conviction would only count as a misdemeanor under federal law, the conviction still qualifies as an "aggravated felony" that can lead to deportation. The Court also will hear Ayers v. Belmontes, which concerns the constitutionality of certain California jury instructions for capital sentencing. Wednesday's arguments are even more technical: whether the "actual controversy" requirement means that a patent licensee must breach its contract before it can challenge the patent as unenforceable or invalid (MedImmune, Inc. v. Genentech, Inc.), and (brace yourselves) whether the statute of limitations on claims brought by the United States applies to federal agency orders requiring the payment of money under a lease covered by the Mineral Leasing Act (BP American Production Co. v. Burton).

But that's what's coming up. Today, we got the Court's big order list, in which it denied cert in about 1800 cases that had piled up over the summer. That list obviously is way beyond the scope of this summary, but the Court also invited the Solicitor General to brief his views on four pending cert petitions, suggesting that these cases have piqued at least some Justices' interest and may be worth watching. (They certainly look to be more riveting than this week's overall lineup). The four cases are:

UGI Utilities, Inc. v. Consolidated Edison of New York, Inc. (05-1323): This case is a sort of follow-up to the Court's 2004 decision in Cooper Industries v. Aviall Services, where the Court held that the text of CERCLA section 113 allows a party that cleans up a contaminated site to sue other parties for contribution only if it first itself has been sued under CERCLA by the government – in other words, if you do the right thing and clean up a site on your own before the government forces you to do it, you can't go after other responsible parties to pay their share. (You can thank Congress for that counterproductive result – for more on Cooper, you can read our December 13, 2004 summary online under "Publications" at www.wiggin.com). UGI concerns essentially the same issue, but this time under a different CERCLA provision, section 107, that the Court did not consider in Cooper. This certainly is yet another technical statutory question, but it has obvious environmental policy implications.

Beck v. Pace International Union (05-1448): We sometimes make fun of ERISA cases as impenetrable, but this one presents a seemingly simple and potentially important question: Whether a pension plan sponsor's decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA's fiduciary obligations.

Wallace v. Calogero (05-1645) and Leclerc v. Webb (06-11): These consolidated cases nominally concern efforts by foreign nationals temporarily in the United States to obtain bar admission, but the questions have much broader implications: (1) whether the standard of review for equal protection challenges to discrimination against nonpermanent visaholding resident aliens is strict scrutiny, some other form of heightened scrutiny, or rational basis review; and (2) whether federal immigration law preempts state licensing regimes categorically barring these aliens from obtaining admission to practice law.

And finally, there is Permanent Mission of India to the United Nations v. New York, New York (06-134), which concerns the power of New York City to tax diplomatic residences owned by foreign embassies: (1) Does the exception to sovereign immunity for cases "in which . . . rights in immovable property situated in the United States are in issue," provide jurisdiction for a municipality's lawsuit seeking to declare the validity of a tax lien on a foreign sovereign's real property when the municipality does not claim any right to own, use, enter, control or possess the real property at issue? (2) Is it appropriate for U.S. courts to interpret U.S. statutes by relying on international treaties that have not been signed by the U.S. Government and that do not accurately reflect international practice because they have only been signed by a limited number of other nations?

Don't be surprised if the Court grants cert in some, if not all, of these cases once the SG has weighed in with his views.

That's it for today. 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