Supreme Court Update: Order List 1/4/13 and 1/7/13

January 7, 2013 Supreme Court Update

Greetings, Court fans!

The Court is back from its holiday recess with three cert grants, and requests for the SG's view on three other cert petitions.

The Court added these cases to its docket:

United States v. Davila (12-167), which asks: "Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant's guilty plea, irrespective of whether the error prejudiced the defendant."

Adoptive Couple v. Baby Girl (12-399), regarding the Indian Child Welfare Act of 1978 (ICWA), which applies to state custody proceedings involving an Indian child. The case raises two questions on which a dozen state courts of last resort are "openly and intractably divided": (1) "Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law;" and (2) "Whether ICWA defines ‘parent' . . . to include an unwed biological father who has not complied with state law rules to attain legal status as a parent."

The Court has held that a State may not discriminate against interstate commerce in water absent an "expressly stated" or "unmistakably clear" congressional intent to immunize the relevant state laws from dormant Commerce Clause scrutiny. Tarrant Regional Water District v. Herrmann (11-889) presents two questions: (1) "Whether Congress's approval of an interstate water compact that grants the contracting States ‘equal rights' to certain surface water and –

using language present in almost all such compacts – provides that the compact shall not ‘be deemed to interfere' with each State's ‘appropriation, use, and control of water not inconsistent with its obligations under this Compact,' manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water;" and (2) "Whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact."

In addition, the Court asked for the SG's input on whether it should take these cases:

Air Wisconsin Airlines Corp. v. Hoeper (12-315), regarding the Aviation and Transportation Security Act (ATSA). The ATSA requires airlines and their employees to report potential security threats to the TSA, and provides airlines and their employees a broad grant of immunity from suit, except for reports made "with actual knowledge that the disclosure was false, inaccurate, or misleading" or "with reckless disregard as to the truth or falsity of that disclosure." Hoeper would ask: (1) "Whether a court can deny ATSA immunity without deciding whether the airline's report was true;" and (2) "Whether the First Amendment requires a reviewing court in a defamation case to make an independent examination of the record before affirming that a plaintiff met its burden of proving a statement was false."

Michigan Department of Licensing and Regulatory Affairs v. Gerstenschlager (12-379), which would ask: (1) "Whether the Trade Act of 1974 prescribes a deadline for a claimant seeking a training waiver as a prerequisite to obtaining benefits under the Act;" and (2) "Whether a federal agency's operating instruction, which states are bound to follow by statutory agreement, is entitled to Chevron deference."

Michigan v. Bay Mills Indian Community (12-515), regarding the Indian Gaming Regulatory Act ("IGRA"), which authorizes an Indian tribe to conduct class III gaming under limited circumstances

and only on "Indian lands." The case would ask: (1) "Whether a federal court has jurisdiction to enjoin activity that violates 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."

That's all for now, but we're sure to be back soon as the Court continues to add to its docket.

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