Order List

March 26, 2010 Supreme Court Update

Greetings, Court fans!

As promised, I'm back to bring you cert grants and other recent orders. We'll begin with the new cases the Court has accepted for review:

Connick v. Thompson (08-571), in which the Court granted cert only as to Question 1: "Does imposing failure-to-train liability on a district attorney's office for a single Brady violation [failure to turn over exculpatory evidence to the accused] contravene the rigorous culpability and causation standards [for municipal liability set forth in] Canton and Bryan County?"

Kasten v. Saint-Gobain Performance Plastic (09-834), which asks: "Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?"

Flores-Villar v. United States (09-5801), which presents the following question for review: "Whether the Court's decision in Nyguyen v. INS, 533 U.S. 53 (2001) permits gender discrimination that has no biological basis?"

Bruesewitz v. Russell (09-152), where the Court will decide whether Section 22(b)(1) of the National Childhood Vaccine Injury Act preempts all vaccine design defect claims against vaccine manufacturers, even where the vaccine's side effects were not unavoidable?

NASA v. Nelson (09-530), which will address whether the government violates a federal contract employee's constitutional right to informational privacy when (1) it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year or (2) it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility, and the employee's/reference's response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. § 552a.

Snyder v. Phelps (09-751), which presents three First Amendment issues arising out of a verbal altercation during a funeral: "(1) Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter? (2) Does the first Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly? (3) Does an individual attending a family member's funeral constitute a captive audience who is entitled to state protection from unwanted communication?"

Belleque v. Moore (09-658), where the Court will address the standard of review for a collateral challenge to a conviction following a guilty plea where the basis of the challenge is ineffective assistance of counsel premised on the defense attorney's failure to move to suppress confessions made prior to the guilty plea. The Court will also consider whether a petitioner must establish that, but for defense counsel's deficient performance, he would have insisted on going to trial rather than taking a guilty plea to be entitled to relief under these circumstances.

Justice Alito dissented from the denial of cert in Nurre v. Whitehead (09-671), a case in which a school prohibited its wind ensemble from playing the song Ave Maria (without lyrics) during a graduation ceremony because of its religious overtones, even though the school had previously told the students that they could select any song to perform. Alito felt that the "Ninth Circuit decision in this case [approving the school's conduct] [wa]s not easy to square with our free speech jurisprudent" and would have granted cert to correct it.

In addition, the Court once again rebuffed efforts by the State of Michigan to stop an invasive fish species from entering the Great Lakes, denying its renewed motion for preliminary injunction, which sought to immediately close certain locks in waterways that flow into Lake Michigan.

The Court also asked the SG to express the views of the United States on petitions for cert in the following cases:

Carmichael v. Kellogg, Brown & Root Service (09-683), which, in KBR's view, would determine "whether the political question doctrine bars adjudication of Petitioner's personal injury suit, which would require reexamination of U.S. Army policies, judgments, and decisions relating to the planning and execution of a war-time military fuel supply convoy in Iraq during Operation Iraqi Freedom."

Amara v. Cigna Corp. (09-784) and Cigna Corp. v. Amara (09-804), which together ask, "whether, in the absence of an express private right of action, Spending Clause legislation establishing requirements for federal-state cooperative programs can unambiguously confer 'rights' enforceable by third-party beneficiaries under 42 U.S.C. § 1983."

Finally, in Skinner v. Switzer (09-9000), Justice Scalia entered a stay of execution pending the Court's decision on whether to grant cert. If the Court takes the case (which it must be thinking pretty hard about since it granted the stay), it will determine whether a state's failure to test DNA can be challenged by a convict in a civil rights lawsuit.

I'll be back next week with more decisions and orders. Until then, enjoy the 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