Order List

November 3, 2009 Supreme Court Update

Greetings, Court fans!
After a week-long hiatus, the Court issued another order list Monday, adding three more cases to its 2009 docket.
For labor lawyers, New Process Steel, L.P. v NLRB (08-1457), will be the case to watch. The issue: "Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that ‘three members of the Board shall, at all times, constitute a quorum of the Board.'?" The NLRB has been operating with only two members since January 2008 and has rendered hundreds of decisions, all of which could be invalidated by the Court's determination.
In Hamilton, Chapter 13 Trustee v. Lanning (08-998), the Court granted cert limited to the following question: "Whether, in calculating the debtor's ‘projected disposable income' during the period, the bankruptcy court may consider evidence suggesting that the debtor's income or expenses during that period are likely to be different from her income or expenses during the pre-filing period."
Finally, Levin v. Commerce Energy, Inc. (09-223), poses two related questions for review: (1) Whether the "Tax Injunction Act's bar against federal cases seeking to enjoin the assessment and collection of state taxes, eliminates or narrows the doctrine of comity [. . .] which more broadly precludes federal jurisdiction over cases that intrude on the administration of state taxation?" and (2) "Do either comity principles or the Tax Injunction Act bar federal jurisdiction over a case in which taxpayers allege, on equal protection and dormant Commerce Clause grounds, that their tax assessments are discriminatory relative to other taxpayers' assessments?"
If Justices Stevens and Scalia had had their way, another case would have made the docket: United States v. Seale (09-166). The issue posed in Seale was the proper statute of limitations to apply to a prosecution under 18 U.S.C. § 1201 (which does not set out its own limitations period) for a crime committed in 1964. Federal law provides a default limitations period for crimes that do not otherwise specify a period. For crimes punishable by death, there is no limit – they can be prosecuted at any time; for non-capital crimes, the limitation period is 5 years. § 1201 was a capital offense in 1964, when Seale's crime was committed, but Congress eliminated the death penalty for violations of § 1201 in 1972. The district court found that the 1972 repeal did not alter the character of Seale's 1964 crime and thus allowed the case to go forward (over 40 years after-the-fact). The Fifth Circuit, acting en banc, split 9-9 on the issue (resulting in an affirmance of the district court's decision) and then certified the question to the Court for its review. The Court denied cert, but Stevens and Scalia dissented. They both felt that the purely legal issue presented in this case should be decided. "The question is narrow, debatable and important." They also noted that the Court had taken a case through the certification procedure in decades and this one was worthy of review.

The Court also invited the SG to weigh in with its views on several cases:
Sossaman v. Texas (08-1438) and Cardinal v. Metrish (09-109), which both ask the Court to determine whether states and state officials may be subject to suit for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§2000cc to 2000cc-5.
Chamber of Commerce v. Candelaria (09-115), which raises several questions about a State's authority to regulate business practices relating to the employment of illegal aliens. Specifically, the case raises three issues: (1) "Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly ‘preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2)." (2) "Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note." (3) "Whether the Arizona statute is impliedly preempted because it undermines the ‘comprehensive scheme' that Congress created to regulate the employment of aliens."
Pfizer Inc. v. Abdullani (09-34), involves a suit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, by Nigerian patients that participated in a drug trial of a new antibiotic for bacterial meningitis and claimed that were not provided adequate information about the drug. The case presents two questions for review: "(1) Whether ATS jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. (2) Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the ‘high bar to new private causes of action' under the ATS. . . ."
Hope you all enjoyed the Halloween weekend!
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