Order List

January 18, 2007 Supreme Court Update

Greetings, Court fans!
The Court issued only one substantive decision this week. In Gonzales v. Duenas-Alvarez (05-1629), a unanimous Court held that the federal statute that provides for deporting an alien convicted of a "theft offense" also applies to aliens convicted of aiding and abetting theft. Applying a longstanding rule of construction from Taylor v. United States, the Court held that Congress intended terms like "theft offense" to refer to crimes in the "generic" sense in which they are used in most states. In this case, the Ninth Circuit had held that a California motor vehicle theft statute went beyond the generic sense (and therefore could not support deportation) because it also encompassed also aiding and abetting. Justice Breyer wrote for the Court in an opinion that quickly rejected that reasoning. Most states long ago collapsed any distinction between those who commit crimes, those who aid them at the scene, and accessories before the fact – so the California law was hardly unique and fell within the Taylor "generic" rule. Duenas-Alvarez notably did not even try to defend the Ninth Circuit's ruling, but instead offered his own arguments for why the California law was not generic. The Court rejected those reasons too. (Justice Stevens did not join this part of the opinion. He was "not prepared to disagree with anything said in [it]," but he would leave those arguments for the lower courts to address first.)
The rest of the activity this week consisted of an odd collection of concurring opinions and statements regarding denials of cert – which probably annoyed the Chief to no end, given his recent statements that the Justices ought to act more like a Court and not a collection of individual Justices (see the most recent Atlantic Monthly – it's a really great piece). First, in Haas v. Quest Recovery Services (06-263), a Title II ADA sovereign immunity case concerning an Ohio correctional facility, the Court granted, vacated and remanded for the Sixth Circuit to reconsider its ruling that Congress could not abrogate states' immunity from equal protection suits under Title II. The Sixth Circuit had not considered the Court's ruling on a similar issue last Term in United States v. Georgia, so now it will get the chance (after a good nudge from the Court). Justice Ginsburg wrote a two-page concurrence to the three-sentence GVR in which she highlighted aspects of the Sixth Circuit's decision that she found "puzzling" and basically asked that court to explain them.
Second, the Court denied cert in Joseph v. United States (06-5590), which concerned the Third Circuit's affirming the denial of a jury instruction regarding the voluntariness of Joseph's confession – even though a federal statute mandated the instruction. Apparently, the Court was convinced by the SG that the error at trial was harmless. Justice Stevens wrote a one-paragraph "statement" saying that he too thought it was harmless, but that denial of cert should not be read as an endorsement of the Third Circuit's "incorrect reasoning."
Third, the Court also denied cert in United States v. Omer (05-1101), which asked whether the failure to include in an indictment all required elements of the charged offense could be harmless error. As you might recall, the Court ducked this very question last week in United States v. Resendiz-Ponce, where it essentially held that for some crimes the government need not be very specific if the "common parlance" of the crime's name evokes its elements (see our last Update). Justice Scalia dissented from that holding, for fear that it would give the government license to avoid putting elements in indictments. He wrote again in Omer to note that the government wasted no time putting that license to use, as it filed a brief the day after Resendiz-Ponce arguing that the decision was grounds to deny cert in Omer. Scalia voted to deny cert, but not because of Resendiz-Ponce's "new some-crimes-are-self-defining jurisprudence," which he viewed as "[a]nother frontier of law opened by this Court, full of opportunity and adventure for lawyers and judges."
Finally, the Court's order list from last Friday included four new cert grants. They are:
Watson v. Philip Morris Co. (05-1284): Whether a private actor doing no more than complying with federal regulation is a "person acting under a federal officer" for the purpose of 28 U.S.C. § 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law.
Hinck v. United States (06-376): Did the grant of selective, limited jurisdiction in the 1996 amendments give the Tax Court exclusive jurisdiction over all [26 U.S.C.] §6404(e)(1) [interest abatement] claims, deny all relief for many taxpayers, and repeal by implication the existing 28 U.S.C. §§1346(a)(1) and 1491(a)(1) refund jurisdiction of the district courts and the Court of Federal Claims?
Struhs v. Wyner (06-531): (1) Whether the 11th Circuit . . . is correct in holding that a preliminary injunction is relief on the merits, or whether the Fourth Circuit . . . is correct in holding that a preliminary injunction is not a ruling on the merits and thus cannot be the basis for prevailing party status? (2) Whether the Eleventh Circuit . . . was incorrect in affirming the district court's order finding that Respondents are prevailing parties where their request for permanent injunctive relief was denied, although at an abbreviated hearing Respondents were awarded interim relief?
Uttecht v. Brown (06-413): Did the Ninth Circuit err by not deferring to the trial judge's observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law?
That's it for now. 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