UPDATED to 2:41 p.m.

In a brief order in mid-afternoon, the Supreme Court refused to order Texas officials to put Ohio Rep. Dennis Kucinich on the Democratic presidential ballot for the March 4 primary election without first signing a pledge of loyalty to the party’s eventual presidential nominee. Justice Antonin Scalia, Circuit Justice for the Fifth Circuit, referred the application to the full Court, which denied it without comment. The application was 07A593, Kucinich v. Texas Democratic Party.

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The Supreme Court on Friday agreed to decide whether smokers may file court challenges, based on state law, to cigarette companies’ advertising claims that some brands are “light” or “low in tar and nicotine.” The case is Philip Morris v. Good, et al. (07-562).

This was one of six cases newly granted. Although the Court ordered expedited briefing in all of the cases, it is expected that only two will be added to the April calendar, completing that schedule, and the other four will go over to the next Term. The Court has not selected which two to hear in April along with ten previously granted cases.  (UPDATE: Ordinarily, the Court schedules oral argument according to when a case was first filed. Among the six granted Friday, cases 06-923 and 06-1249 have been on the docket the longest.)

The Philip Morris case focuses on the interaction between a federal law that regulates labeling and advertising of cigarettes and a state law — in Maine — that permits lawsuits based upon deceptive commercial practices.  Three former smokers of Marlboro Lights, made by Philip Morris, are pursuing a class action lawsuit claiming that the use of the word “light” or the phrase “low in tar and nicotine” misleads smokers into thinking that the health hazard of such cigarettes is lowered.  The lawsuit contends that smokers, because of their addiction, will smoke so-called “light” cigarettes in such a way as to defeat any filter put on them.  The legal argument is that the advertising claims are violations of Maine’s fair trade practices law. Philip Morris’ appeal to the Supreme Court argued that an answer to the preemption question “will significantly impact the outcome of dozens of pending lawsuits in which plaintiffs are alleging billions of dollars in potential liability” over low tar and nicotine claims.  The First Circuit Court cleared the way for the Maine case to go forward; the Fifth Circuit has ruled against such state law-based cases.

Among other cases granted is a test of whether federal law protects a worker from being fired after being a witness in a company or agency’s internal investigation of sexual harassment on the job (Crawford v. Metro Nashville Government, 06-1595).  The Sixth Circuit Court ruled that only workers who pursue their won complaint about discrimination or persuade the federal government to pursue a charge are protected from retaliation under Title VII of federal civil rights law.

In a separate case involving workers’ rights — here, a claim of age bias in the workplace — the Court granted review of whether a worker or the employer has the burden of proving that the action taken was or was not done for a valid reason other than age (Meacham v. Knolls Atomic Power Laboratory, 06-1505, grant limited to first question). Justice Stephen G. Breyer is recused from the case. The Second Circuit Court ruled that workers claiming a violation of the Age Discrimination in Employment Act bear the burden of demonstrating that the layoffs at issue in the case were unreasonable and not justified by a reason other than age.

Along with the cigarette law preemption case, the Court will hear another case on whether federal law has taken over the field — here, the enactment of state laws that impose their own labeling requirements to assure that drugs are safe for use (Wyeth v. Levine, 06-1249). The Vermont Supreme Court ruled that federal regulation on drug safety only provides a floor on labeling requirements so states are free to impose more restrictive labeling under their own duty-to-warn tort laws. The case involves an anti-nausea drug, Phenergan, made by Wyeth.

An ERISA case added to the docket tests whether the manager of an employee benefit plan has an illegal conflict of interest if the plan gives that individual the authority both to pay benefits and to rule on eligibility for benefits (MetLife v. Glenn, 06-923).  In addition to that question, the Court added a second issue to be addressed: if that is a conflict of interest, how should that be taken into account by a court reviewing a specific benefit decision.  The Sixth Circuit Court, in conflict with some federal appeals courts but in agreement with others, ruled that the dual role of funding and decider for plan administrators is a potential conflict of interest that must be weighed in judging a plan manager’s benefit eligibility ruling.

Tbe final grant Friday involves a government appeal asking whether a challenger to a federal regulation setting up procedures for a special government program may challenge the regulation itself, or is limited to a complaint against a specific program undertaken under that rule.  The case (Summers v. Earth Island Institute, 07-463) involves a federal regulation on clearing of burned-out forest lands.  The lawsuit in this case arose after a major fire that burned 150,000 acres in the Sequoia National Forest in California.  A salvaging project, the Burnt River Project near California Hot Springs, was challenged by conservation groups, along with the underlying Forest Service regulation under which the project wsas planned. The dispute over that particular project ended, but the Tenth Circuit Court allowed the case to proceed against the regulation, striking down part of it.

Friday’s orders were limited to new grants.  Other orders will be released on Tuesday morning. At that time, the Court may indicate what it will do with a major investors’ securities fraud lawsuit growing out of the Enron scandal (see the post below).  The Court has the options of granting that case, ordering it back to a lower court for a new review, simply denying review of it, or holding it for a time while it considers further what to do.

Posted in Wyeth v. Levine, Meacham v. Knolls Atomic Power Laboratory, Crawford v. Metropolitan Government of Nashville, MetLife v. Glenn, Altria Group v. Good, Everything Else