Supreme Court Update: Agency for International Development v. Alliance for Open Society Int'l, Inc. (12-10) and Order List

June 24, 2013 Supreme Court Update

Greetings, Court fans!

The Court kicked off the last week of the Term with 5 signed opinions, a per curiam decision, and a dozen cert grants and SG invites. This Update covers today's orders as well as last week's decision in Agency for International Development v. Alliance for Open Society Int'l, Inc. (12-10).

The Chief and Justice Scalia fought over prostitution and free speech in Agency for International Development v. Alliance for Open Society Int'l, Inc. (12-10), where the Court determined that the government violates the First Amendment when it requires a federal grantee to support a particular government policy that the grants are intended to serve. Alarmed at the rapid and deadly spread of AIDS, Congress passed the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act in 2003. The Act appropriated billions of dollars that could be granted to NGOs fighting AIDS. Because it believed that prostitution played a significant role in the spread of AIDS, Congress attached two strings to the grant money: an organization couldn't use the money to promote prostitution, and it had to have a policy "explicitly opposing prostitution." In a 6-2 decision (Justice Kagan recused), the Court held the second string unconstitutional.

Writing for the Court, the Chief recognized that Congress can constitutionally spend money to promote particular programs, and that generally "if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds," even when the condition would otherwise affect the party's First Amendment Rights. But there is a limit to the power, albeit one that, lamentably, is "hardly clear" and "not always self-evident": Congress may set conditions on how its grant money may be spent, including related limitations on speech, but it may not set conditions on speech "outside the contours of the program itself." The Court concluded that the second string – requiring grantee organizations to put forward an affirmative policy statement opposing prostitution – was outside the program, and so unconstitutional.

Justice Scalia dissented, joined by Justice Thomas. Requiring a statement opposing prostitution was a constitutionally permissible "means of selecting suitable agents to implement the Government's chosen strategy to eradicate HIV/AIDS." Fans of prostitution, or those wishing to stay neutral on the issue, were not coerced by the Act into speaking against the sex trade. They could just choose to do their work on their own dime, foregoing the federal government's assistance.

For cert grants, the biggest newsmaker of the day was NLRB v. Canning (12-1281), which will decide (1) "Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate," and (2) "Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess," as well as a third question the Court directed the parties to brief and argue: "Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions."

The rest of today's cert grants came in:

Unite Here Local 355 v. Mulhall (12-99), which asks: "Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer's property and employees, and its freedom of contract by obtaining the union's promise to forego its rights to picket, boycott, or otherwise put pressure on the employer's business?"

Michigan v. Bay Mills Indian Community (12-515), on: (1) "Whether a federal court has jurisdiction to enjoin activity that violates [the Indian Gaming Regulatory Act ("IGRA")], but takes place outside of Indian lands;" and (2) "Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands."

Lozano v. Alvarez (12-820), regarding "Whether a district court considering a petition under the Hague Convention for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left behind parent."

Mayorkas v. De Osorio (12-930), to decide (1) "Whether Section 1153(h)(3) [of the Immigration and Nationality Act] unambiguously grants relief to all aliens who qualify as ‘child' derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary;" and (2) "Whether the Board of Immigration Appeals reasonably interpreted Section 1153(h)(3)."

McCullen v. Coakley (12-1168), which asks: (1) "Whether the First Circuit erred in upholding Massachusetts' selective exclusion law under the First and Fourteenth Amendments, on its face and as applied to petitioners;" and (2) "If Hill v. Colorado, 530 U.S. 703 (2000), permits enforcement of this law, whether Hill should be limited or overruled."

EPA v. EME Homer City (12-1182), consolidated with American Lung Assn. v. EME Homer City (12-1183), which presents three questions for review: (1) "Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief;" (2) "Whether States are excused from adopting SIPs [state implementation plans] prohibiting emissions that ‘contribute significantly' to air pollution problems in other States until after the EPA has adopted a rule quantifying each State's interstate pollution obligations;" and (3) "Whether the EPA permissibly interpreted the statutory term ‘contribute significantly' so as to define each upwind State's ‘significant' interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State's physically proportionate responsibility for each downwind air quality problem."

Executive Benefits Insurance Agency v. Arkison (12-1200), on (1) "Whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether ‘implied consent' based on a litigant's conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III;" and (2) "Whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a ‘core' proceeding under 28 U.S.C. § 157(b)."

UBS Financial Services, Inc.. v. Union de Empleados de Muelles (12-1208), which asks whether the First Circuit should have "reviewed for abuse of discretion the District Court's determination, pursuant to Rule 23.1, that the particularized facts alleged in a shareholder derivative complaint were insufficient to excuse a pre-suit demand on the corporation's board of directors?"

In addition to the cert grants, the Court also asked the SG for the United States' views on three pending petitions:

Limelight Networks, Inc. v. Akamai Technologies (12-786), which would ask "Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S.C. § 271(b) even though no one has committed direct infringement under § 271(a)," and, relatedly …

Akamai Technologies, Inc. v. Limelight Networks, Inc. (12-960), which would ask "Whether a party may be liable for infringement under either 35 U.S.C. § 271(a) or § 271(b) where two or more entities join together to perform all of the steps of a process claim?"

And, finally, Samantar v. Yousuf (12-1078), on "Whether a foreign official's common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiffs' allegations that those official acts violate jus cogens [literally, ‘compelling law'] norms of international law."

Don't touch that dial! We'll be back very soon with the decisions issued today.

Kim, Jenny & Julie

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