Supreme Court Update: Order List 9/27/11

September 30, 2011 Supreme Court Update

Greetings, Court fans!

The 2011 Term, which officially begins next Monday, promises to be a blockbuster. With cases ranging from the Government's right to use GPS tracking devices on cars without a warrant, to the scope of the ministerial exception to anti-discrimination laws, to the content that can be aired on television during times children may be watching, we can promise it won't be dull. And the likelihood that the Court will take up the constitutionality of the federal Patient Protection and Affordable Care Act's individual insurance mandate went up dramatically when the DOJ asked the Court to decide the case on Wednesday. If the Court accepts the Government's request, the outcome may even influence the 2012 election – which is likely to occur within months after the Court would issue its decision.

This week, the Court got a jump on its business with an order list granting cert in these cases:

Filarsky v. Delia (10-1018), which asks whether a lawyer retained to work with government employees in conducting an internal affairs investigation may assert a qualified immunity defense.

Vartelas v. Holder (10-1211), which will address whether the Illegal Immigration Reform and Immigrant Responsibility Act – which removed the right of lawful permanent residents to make "innocent, casual, and brief" trips abroad without fear that they would be denied reentry – can be applied retroactively to a guilty plea taken prior to the effective date of the Act.

Holder v. Gutierrez (10-1542) and Holder v. Sawyers (10-1543), which have been consolidated, present the following issue for review: Whether a parent's years of lawful permanent resident status can be imputed to an alien who resided with that parent as an unemancipated minor for the purpose of satisfying 8 U.S.C. § 1229b(a)(1) and (2)'s requirement that an alien seeking cancellation of removal have "been an alien lawfully admitted for permanent residence for not less than 5 years," and "resided in the United States continuously for 7 years after having been admitted in any status."

Roberts v. Sea-Land Services (10-1399), which concerns the proper fiscal year on which to base limits for disability benefits under the Longshore and Harbor Workers' Compensation Act, and whether the phrase "those newly awarded compensation during such period" in § 6(c) of the Act "can be read to mean ‘those first entitled to compensation during such period,' regardless of when it is awarded."

Taniguchi v. Kan Pacific Saipan (10-1472), presents this question for review: "Whether costs incurred in translating written documents are ‘compensation of interpreters'" which may be awarded a prevailing party under 28 U.S.C. § 1920(6).

United States v. Home Concrete & Supply (11-139) poses two questions: (1) "Whether an understatement of gross income attributable to an overstatement of basis in sold property is an ‘omi[ssion] from gross income' that can trigger" an extended six-year period for the IRS to assess additional tax; and (2) "Whether a final regulation promulgated by the Department of the Treasury, which reflects the IRS's view that an understatement of gross income attributable to an overstatement of basis can trigger the extended six-year assessment period, is entitled to judicial deference."

Wood v. Milyard (10-9995), which the Court limited to the following questions: (1) "Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense" to a habeas petition; and (2) "Does the state's declaration before the district court that it ‘will not challenge, but [is] not conceding, the timeliness of Wood's habeas petition,' amount to a deliberate waiver of any statute of limitations defense the State may have had?"

We look forward to another terrific Term following the Court with you!

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