Supreme Court Update: 10/12/10 and 10/18/10 Order Lists

October 19, 2010 Supreme Court Update

Greetings, Court fans!

The Court granted cert in seven more cases last week and another yesterday, covering topics ranging from criminal law, to patent law, to tribal sovereignty.

Yesterday's grant will provide another bit of insight into the Court's views on executive power and on whether (and when) policy makers can be subjected to suit under Bivens. After his arrest on a material witness warrant under 18 U.S.C. § 3144, the respondent in Ashcroft v. Al-Kidd (10-98) filed a Bivens action against former Attorney General Ashcroft for allegedly implementing a policy of using the material witness statute as a "pretext" to investigate and preventively detain terrorism suspects. The case asks whether the Ninth Circuit erred in denying the former AG: (1) absolute immunity from the pretext claim, and/or (2) qualified immunity, based on the Court's conclusion that a clearly established Fourth Amendment rule prohibited an officer from executing a material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject.

The defendant in Bond v. United States (09-1227) tried to injure her husband's paramour by spreading toxic chemicals on the woman's car and mailbox. She was convicted under 18 U.S.C. § 229(a), which had been enacted pursuant to a treaty to address the proliferation of chemical and biological weapons. The question presented is: Does a criminal defendant have standing to challenge her conviction under a federal statute on grounds that, as applied to her, the statute is beyond the federal government's enumerated powers and inconsistent with the Tenth Amendment?

Federal law imposes a ten-year mandatory minimum sentence for drug-related offenses involving 5 kilograms of coca leaves or cocaine, or just 50 grams of substances that contain "cocaine base." The question presented in DePierre v. United States (09-1533) is whether the term "cocaine base" is limited to "crack" cocaine, or instead encompasses every form of cocaine that is classified chemically as a base—which would mean that the ten-year mandatory minimum applies to an offense involving 50 grams of raw coca leaves or of the paste derived from coca leaves.

Camreta v. Greene (09-1454) and Alford v. Greene (09-1478) have been consolidated for oral argument. The question presented in both cases is how to assess the constitutionality of interviews by law enforcement and child welfare officials of children they suspect to be the victims of abuse where there is no warrant, court order, or parental consent: by the balancing standard that applies to the temporary detention of witnesses, or by the heightened warrant/warrant-exception requirements that apply to the seizure of suspected criminals? Camreta presents the additional question of whether the Ninth Circuit's application of the warrant/warrant-exception framework—and articulation of a rule that will apply to all future child-abuse investigations—is reviewable, notwithstanding that the court ruled in petitioner's favor on qualified immunity grounds.

Duryea v. Guarnieri (09-1476) asks whether state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petitioned the government on matters of purely private concern.

Global-Tech Appliances v. SEB S.A. (10-6) asks the Court to define the state of mind element of a claim for actively inducing infringement under 35 U.S.C. § 271(b): "deliberate indifference of a known risk" that an infringement may occur, or "purposeful, culpable expression and conduct" to encourage an infringement?

In an earlier decision involving the Oneida Indian Nation, the Court held that the tribe could not unilaterally revive sovereignty over recently-purchased property that had been owned and governed by non-Indians for 200 years. The questions presented in Madison County, NY v. Oneida Indian Nation of NY (10-72) are (1) whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes, and (2) whether the ancient Oneida reservation in New York was disestablished or diminished.

In addition to these cert grants, Justice Ginsburg, joined by Justice Sotomayor, dissented from the denial of cert in Weise v. Caspar (10-67). The petitioners had been forcibly ejected from a speech by President Obama, because they arrived at the event in a car with the bumper sticker "No More Blood for Oil." The Tenth Circuit held that the respondents, volunteers following instructions from White House officials, were entitled to qualified immunity. Justice Ginsburg would have granted cert to address whether the respondents' actions violated the First Amendment rights of these "silent attendees." But the Court may have another opportunity to take up this issue yet – suits against the White House officials who gave the instructions are still pending.

We'll continue to bring you more cert grants as the Court continues to fill up its docket. Until then, thanks for reading!

Kim & Jenny

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