Order List

February 28, 2005 Supreme Court Update

Greetings, Court Fans!
You'll be happy to know that today's update is short and sweet -- the Court issued no opinions today, just an order list. We do expect the Court to issue some opinions tomorrow and Wednesday, which promises to be an exciting day of argument: The Court will hear Van Orden v. Perry and McCreary County v. ACLU of Kentucky, the cases concerning public displays of the Ten Commandments (for the record, our very own Jeff Babbin and Ken Heath filed an amicus brief in both cases on behalf of the Anti-Defamation League, arguing that the particular displays at issue violated the Establishment Clause).
The Court granted cert today in four cases:
Garcetti v. Ceballos (04-473): In this First Amendment retaliation case, the Court will once again review a decision by the Ninth Circuit, this time concerning the following questions: 1. Should a public employee's purely job-related speech, expressed strictly pursuant to his duties of employment, be cloaked with First Amendment protection simply because it touches on matters of public concern, or should First Amendment protection also require the speech to be engaged in "as a citizen," in accordance with the holdings in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983)? 2. Is immediate review by this Court necessary to address growing inter-circuit conflict on the question of whether public employee's purely job-related speech is constitutionally protected, especially when the lack of uniformity dramatically impacts the ability of all public employers to effectively manage their respective agencies?
Unitherm Food Systems v. Swift-Eckrich, Inc. (04-597): The Court limited its consideration of this case to the following: Whether, and to what extent, a court of appeals may review the sufficiency of the evidence supporting a civil jury verdict where the party requesting review made a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil procedure before submission of the case to the jury, but neither renewed that motion under Rule 50(b) after the jury's verdict, nor moved for a new trial under Rule 59?
Richards v. Prairie Band Potowatomi Nation (04-631): When a state taxes the receipt of fuel by nontribal distributors, manufacturers, and importers, and such receipt occurs off-reservation, does the interest balancing test in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), apply because the fuel is later sold by the tribe to final consumers? 2. Should the Court abandon the White Mountain Apache interest balancing test in favor of preemption analysis based on the principle that Indian immunities are dependent upon congressional interest? 3. Did the court of appeals err in applying the White Mountain Apache interest balancing test by, inter alia, placing dispositive weight on the fact that a tribally owned gas station derives income from largely nontribal patrons of the tribe's nearby casino?
Lincoln Property Co. v. Roche (04-712): 1. Can an entity not named or joined as a defendant in a lawsuit nonetheless be deemed a "real party in interest" to destroy complete diversity of citizenship in a case removed from state court under 28 U.S.C. 1441(b)? 2. Is a limited partnership's citizenship for diversity jurisdiction purposes determined not by the citizenship of its partners but by whether its business activities establish a "very close nexus" with the state?
Finally, the Court asked the SG to weigh in on the following IP question in Lancaster Corp. of America v. Metabolite Laboratories (04-607): "Respondent's patent claims a method for detecting a form of vitamin B deficiency, which focuses upon a correlation in the human body between elevated levels of certain amino acids and deficient levels of vitamin B. The method consists of the following: First, measure the level of the relevant amino acids using any device, whether the device is, or is not, patented; second, notice whether the amino acid level is elevated and, if so, conclude that a vitamin B deficiency exists. Is the patent invalid because one cannot patent 'laws of nature, natural phenomena, and abstract ideas'? Diamond v. Diehr, 450 U.S. 175, 185 (1981)."
That's all for now, and thanks again 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