The ruling, written by Justice Clarence Thomas, resolved only a question of court jurisdiction under the Copyright Act.  The Court expressly declined to offer any views on the merits of the settlement.

The Court concluded that U.S. District Judge George B. Daniels did have the authority to do so when he upheld the settlement more than four years ago.  The settlement had appeared to be scuttled after the Second Circuit ruled in 2007 that the judge lacked jurisdiction to approve the deal, because some of those making claims for payments under the deal had not registered their works before taking part in the case.

On the jurisdictional point, the ruling means that if some owners of copyrights are legally in court because they had registered their works with the Copyright Office before suing, the District Court may go ahead and act on a class-action settlement even though some copyright owners who did not register their creations are also before the court. The register-before-suit provision, Thomas wrote, is not a jurisdictional pre-condition for a judge to approve a class and the terms of a class settlement of a copyright dispute.

Besides overturning the Second Circuit on that point, the Court on Tuesday refused to embrace a second argument for scuttling the settlement — that is, that the database publishers who supported the settlement had changed their legal positions on the jurisdictional question.

The settlement thus now stands where it did in September 2005 with Judge Daniels’ ruling: it has the judge’s approval, but it remains open to renewed challenge before the Second Circuit when the case returns there.  The deal was challenged in that appeal by ten authors who contended that, under a specific provision in the settlement, they might receive lower payments than some other copyright owners and, in fact, might receive no payments at all under the formula they were challenging.

The dissenting judge on the Second Circuit, while arguing that Judge Daniels did have authority to approve, noted with some concern the possibility that class members in that category “are paid little or perhaps nothing.”  The dissenter also said it was “a serious problem” that the settlement did not provide for some protection against favoritism of some authors.  Both of those issues are likely to arise anew when the case goes back to the Circuit Court.

Although the case in the Supreme Court had implications for the scope of copyright protection in the Digital Age, since it involved republishing of the created works on electronic databases, the Justices did not resolve the case in a way peculiar to that context.  The ruling on District Court power under the Copyright Act would have been the same whether or not digital publishing was at stake.

At the same time, however, the decision does reaffirm the power of a federal District Court to approve a “global settlement” of a major copyright dispute — one that seeks to end all future claims for infringement, in return for creation of a fund to pay off the copyright owners in order to compensate them while providing security for those who have re-published the works without permission.  In this case, the publishers had embraced the settlement because they were concerned about major omissions from their databases of the creative works.

The $18 million deal was put together, in difficult negotiations stretching over more than three years, in order to achieve legal peace in the publishing industry.  Nearly forty publishers, which had obtained the authors’ works for initial publication, had entered them in their electronic archives without the consent of the authors.  The deal allowed for restoration of articles previously taken out of those databases, and retention of those still there.

One estimate of the size of the electronic archive at risk in the case was that it included “every published English language work, regardless of where published, that has been on a database since 1997 without the copyright owner’s permissions.”  Some 26,000 publications were said to be covered by the settlement, including nearly three dozen encyclopedias.

With the case now returned to the Second Circuit, payment of the authors from the settlement fund will be delayed at least for months.  It will now be up to the Circuit Court to decide whether to call for new written arguments, or to proceed on its own with judging the ten objecting authors’ complaints about the deal.

Background

The plaintiff, Sergeant Keith Carmichael, was assigned to ride in a fuel truck in a convoy between bases outside of Baghdad.  The convoy was operated by a military contractor, which employed the drivers.  In addition to placing soldiers in the trucks, the military provided escort vehicles to protect the convoy and extensively regulated the details of the trip, including when the convoy would move, its route, how many vehicles would participate, their speed, and the distance between the trucks.  During the convoy, Carmichael’s driver lost control of the truck on an S-curve.  The vehicle went off the road and flipped over.  Carmichael was thrown from the vehicle and eventually pinned under it.  The accident left him in a persistent vegetative state.  The contractor’s subsequent inquiry found that the accident was caused by the driver’s carelessness and excessive speed.

Carmichael’s wife subsequently sued the driver and the contractor in Georgia state court, alleging negligent operation of the vehicle by the driver and negligent hiring, supervising, and training by his employer.  The defendants removed the case to federal court, where the district court dismissed it for lack of jurisdiction under the political question doctrine.

The Eleventh Circuit’s Decision

The Eleventh Circuit affirmed.  It explained that under the political question doctrine, courts lack jurisdiction over cases “which revolve around policy choices and value determinations constitutionally committed” to Congress or the Executive Branch, as well as those in which there is a “lack of judicially discoverable and manageable standards for resolving it.”  It found that both were true in this case.

First, the court of appeals held that the case would require “reexamination of many sensitive judgments and decisions entrusted to the military in a time of war,” ranging from the “decision to utilize civilian contractors in conduct the war in Iraq” to the details of the convoy’s planning and execution.  “The rollover in which Sergeant Carmichael was injured never would have taken place if these basic decisions had not been made.”

Second, the court held that there are no judicially manageable standards for applying traditional tort principles in this context.  A negligence claim requires the jury to decide whether the defendant complied with a standard of care, but – the court concluded – there are no manageable standards for determining a standard of care of military contractors in combat zone.  While judges and juries can rely on “common sense and everyday experience” to decide whether a driver acted reasonably in normal circumstances, they are ill-equipped, the court believed, to decide what constitutes reasonable care in the context of an armed conflict.

Petition and Opposition

Carmichael petitioned for cert., arguing that the Eleventh Circuit’s decision effectively immunizes all private military contractors from liability for injuring American soldiers in combat zones, regardless of how negligent their conduct was.  The petition asserts that no other court has ever dismissed a case against a private entity on political question grounds and that the question is of great importance given the military’s increasing reliance on private contractors.

The petition further insists that the court of appeals was wrong in concluding that a jury would be required to second-guess military judgments to resolve the suit.  Instead, petitioner asserts that the facts would show that the sole cause of the plaintiff’s injuries was the driver’s simple negligence in driving too quickly through the curve; nothing in the rules governing the convoy, petitioner argues, prohibited the driver from slowing down and paying more careful attention to the road.

In their brief in opposition, the defendants argue that the petition alleges no circuit split and that the Eleventh Circuit’s meticulous opinion was consistent with the Supreme Court’s political question precedents.  Only two circuits (the Fifth and, in this case, the Eleventh) have considered the political question doctrine’s application to suits against military contractors in a combat zone, respondents argue, and both found the suits barred.  Moreover, the Eleventh Circuit and district court found, after an exhaustive examination of the facts of this case, that the negligence claim unavoidably required second-guessing military judgments.  If the case were to go to trial, respondents argue, they would defend the suit by showing that the accident was not caused solely by the driver’s lack of diligence and care, but also by decisions – controlled by the military – about the route the convoy took, its speed, and the guidance given to the driver about the upcoming S-curve from the convoy’s military commander.

The CVSG

Monday’s call for the views of the Solicitor General is notable, given the lack of an asserted circuit split.  It likely reflects that at least several members of the Court are concerned about the broad ramifications of the ruling below, whose rationale (particularly on “judicially manageable standards”) would seemingly extend to a broad range of lawsuits against military contractors in Iraq and elsewhere.  Because the plaintiff did not sue the military, the Government has not participated in the case thus far.  The invitation brief will therefore provide the United States an opportunity to weigh in on the basic questions raised, including perhaps the extent to which the Government believes that tort suits against contractors affects the military’s ability to perform its mission in Iraq and elsewhere.

There is no due date for responses to invitation briefs, but it is likely that the Solicitor General will attempt to file a response in time for the Court to rule on the petition before it breaks for the summer recess.

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to remarks that a private person made about another private person, occurring outside the site of a private event.  The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech.   The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.

In March four years ago, Marine Lance Corporal Matthew A. Snyder was killed while serving in Iraq.  His family arranged for a private funeral, with Christian burial, at St. John’s Catholic Church in Westminster, Md.  When word of the planned funeral appeared in the newspapers, the Rev. Fred W. Phelps, Sr., pastor of Westboro Baptist Church in Topeka, Kan., who has gained notoriety in recent years by staging protests at military funerals, decided to stage a demonstration at the Maryland funeral.  In response to such protests, some 40 states have passed laws to regulate funeral demonstrations.

The Rev. Phelps’ church preaches a strongly anti-gay message, contending that God hates America because it tolerates homosexuality, particularly in the military services.  The church also spreads its views through an online site, www.godhatesfags.com.   When the Snyder funeral occurred, the Rev. Phelps, two of his daughters and four grandchildren staged a protest nearby.  They carried signs with such messages as “God Hates the USA,” “America is doomed,” “Pope in hell,” “Semper fi fags,” and “Thank God for dead soldiers.”  The demonstration violated no local laws, and was kept at police orders a distance from the church.   After the funeral, the Rev. Phelps continued his protest over the Snyder funeral on his church’s website, accusing the Snyder family of having taught their son irreligious beliefs.

The soldier’s father, Albert Snyder, sued the Rev. Phelps, his daughters and the Westboro Church under Maryland state law, and won a $5 million verdict based on three claims: intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.  (The verdict included $2.9 million for compensatory damages and $2.1 million for punitive damages; the punitive award had been reduced from $8 million by the trial judge.) The Fourth Circuit Court overturned the verdict, concluding that the protesters’ speech was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about the soldier or his family.  While finding that the Phelps’ remarks were “utterly distasteful,” the Circuit Court said they involved matters of public concern, including the issue of homosexuality in the military and the political and moral conduct of the United States and its citizens.

In Albert Snyder’s appeal, his lawyers argued that the Supreme Court’s protection of speech about public issues, especially the Justices’ 1988 decision in Hustler Magazine v. Falwell, does not apply “to private individuals versus private individuals.”  If it does apply, the petition said, “the victimized private individual is left without recourse.”  The Circuit Court decision, it added, encourages private individuals to use hyperbolic language to gain constitutional protection “even if that language is targeted at another private individual at a private, religious funeral.”

Even if the Hustler decision does apply to the kind of remarks at issue, the petition asserted, the case also raises the issue of whether those who attend a funeral are like a “captive audience” and thus need protection against intruders who were not invited.

In another case bearing on claims of privacy, the Court Monday added to its decision docket a case involving the broad issue of whether the Constitution protects a “right of informational privacy” — that is, a form of Fifth Amendment protection against government demands for personal information.  The Supreme Court mentioned such a right in a 1977 decision, and has seldom mentioned it since.  A group of workers employed by California Institute of Technology, and working under contract at Caltech’s Jet Propulsion Laboratory outside of Pasadena, won a court order against some of the government demands for information about their private lives — part of background checks similar to the security reviews that regular federal employees often undergo.

The National Aeronautics and Space Administration took the issue to the Supreme Court in NASA v. Nelson, et al. (09-530).  The petition argued that the lower court ruling not only jeopardizes the government’s authority to get information about contract employees, but also about its capacity even to demand information from its own agencies’ employees.  “The ramifications of the decision below are potentially dramatic,” the petition contended.

In the third newly granted case, Bruesewitz, et al., v. Wyeth, Inc., et al. (09-152), the Court will be reviewing the scope of a 1986 federal law that sought to bar all state-court damages lawsuits claiming that vaccines given to children caused injury or death because of a design defect, and that a safer alternative was available but was not used.  The appeal by a Philadelphia family for themselves and their disabled daughter contended that the Third Circuit Court ruled that the 1986 law only bars state court claims where the harmful side-effects were unavoidable. They argued that all such claims are barred, whether the side-effects were avoidable or not.

The Court agreed to hear the Bruesewitz case after asking for the U.S. Solicitor General’s views on the underlying legal issue.  The SG urged that the Court grant review of this case, rather than another pending on the same issue (08-1120).

The Court has granted cert. in three cases,  NASA v. Nelson (09-320), Snyder v. Phelps (09-751), and Bruesewitz v. Wyeth (09-152).  The Chief Justice took no part in consideration of the last petition.

The Court has requested the views of the Solicitor General in the following cases: Carmichael v. Kellogg, Brown & Root Service, Inc. (09-683) and Amara v. CIGNA/CIGNA v. Amara (09-784/09-804).  Justice Sotomayor took no part in considering the last two petitions.

We have just two opinions today:

The first opinion is  Milavetz, Gallop & Milavetz, P.A. v. United States (08-1119).  Justice Sotomayor writes for the Court, joined in full by six Justices and in part by Justices Scalia and Thomas.  Justice Scalia concurs in part and concurs in the judgment, joined by Thomas.  The Court holds that attorneys who provide bankruptcy assistance are debt-relief agencies under the bankruptcy abuse law.  The opinion is here.

The second opinion is in Bloate v. United States (08-728), reversing and remanding the lower court decision on a 7-2 vote.  Justice Thomas writes for the Court.  Justice Ginsburg joins the opinion but files a separate concurrence.  Justice Alito dissents, joined by Justice Breyer.  The time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974.  The opinion is here.

The full order list is here.

Title: Bruesewitz v. Wyeth
Docket: 09-152
Issue: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

• Opinion below (3d Circuit)
• Petition for certiorari
• Brief in opposition
• Supplemental brief addressed to the amicus brief of the United States in American Home Products Corp. v. Ferrari
• Amicus brief of the National Vaccine Information Center

Title: Snyder v. Phelps
Docket: 09-751
Issue: (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter; (2) whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and (3) whether an individual attending a family member’s funeral constitutes a “captive audience” who is entitled to state protection from unwanted communication.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition

Title: National Aeronautics and Space Administration v. Nelson
Docket: 09-530
Issues: Whether the government violates a federal contract employee’s constitutional right to informational privacy by (1) asking in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year and/or (2) asking the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility — when the employee’s and reference’s responses are used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. § 552a.

• Opinion below (9th Circuit, denial of rehearing en banc)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Carmichael v. Kellogg, Brown & Root Service, Inc.
Docket: 09-683
Issue: Whether a private military contractor in Iraq should be afforded de facto immunity under the political question doctrine for severely injuring
a United States soldier in an automobile wreck during a routine convoy.

• Petition for certiorari
• Brief in opposition

Title: Amara v. CIGNA; CIGNA v. Amara
Docket: 09-784; 09-804
Issue: (1) Whether a district court, after finding violations of the advance notice of reduction requirement in the Employee Retirement Income Security Act §204(h), lacks the authority to require the prior benefit provisions to be reinstated; and (2) whether a district court, after finding that participants were promised “comparable” or “larger” future retirement benefits in a summary of material modification errs in concluding that it lacks the authority to require at least “comparable” future benefits to be provided.

• Petition for certiorari (09-784)
• Petition for certiorari (09-804)
• Brief in opposition (09-784)
• Brief in opposition (09-804)
• Petitioner’s reply (09-784)
• Petitioner’s reply (09-804)

No. 08-1119, Milavetz, Gallop, & Milavetz

No. 08-728, Bloate v. United States

Even while saying a delay was not now legally justified, Roberts noted that the challengers may still try to undo the new D.C. marriage provision by attempting to put it on the ballot asking local voters to repeal the law.  That separate maneuver is now under review in the D.C. Court of Appeals, Washington’s highest local court.

Although challengers are pursuing other legal steps,  the capital city will at least temporarily join these states in allowing gay couples to wed: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont.

The D.C. City Council on Dec. 15 passed a new law authorizing marriage licenses within the city for same-sex couples. The city’s mayor signed it on Dec. 18.  Under a requirement imposed by Congress, the measure had to be sent to Congress for clearance; Congress had 30 legislative days to veto it.  Those legislative days, city officials have said, were to expire today (Tuesday).  Congress has taken no action, so city officials plan to start issuing marriage licenses on Wednesday.

The dispute, as it went before Chief Justice Roberts, grew out of an attempt to get a ballot measure before city voters to declare that, in the District of Columbia, only a marriage between a man and a woman would be valid or recognized.  This was an attempt to settle the issue before the City Council could act on a measure to do just the opposite.

A local election board, backed up by a local trial court, refused to clear the opponents’ measure for the ballot, concluding that human rights law in the city does not allow an initiative proposal that would authorize discrimination based on sexual orientation.  Arguing that local law does not put such a limit on voter initiatives, the opponents took the issue on to the D.C. Court of Appeals, where the case is still pending.

After the City Council adopted the same-sex marriage law and the mayor signed it, the opponents then sought to put the measure to a vote of Washingtonians.  The election board turned down that maneuver, too, again finding that it would result in discrimination.   Opponents returned to local courts, seeking to block the effective date of the new law because, once that law took effect, it could not be pre-tested in a referendum.  Both a local trial judge and the D.C. Court of Appeals refused to delay the law’s effect.  The opponents then took their plea for delay to the Chief Justice, in his role as Circuit Justice for Washington, D.C., matters.

The challengers told Roberts that they planned to appeal to the Supreme Court on the question of whether city officials had the legal authority to add a new limitation on the ballot measure process.   They argued that the city’s home rule charter does not permit such a charter amendment, since such an amendment requires voter approval.

The Chief Justice studied the issue for a day, then refused to issue an order delaying the new marriage law. In doing so, Roberts said the opponents’ legal challenge “has some force.”  But he then gave three reasons for refusing any relief at this point: a tradition of deferring to D.C. courts on D.C. matters, the fact that Congress did not use its veto power — either on the marriage law or on the amendment barring a discriminatory measure, and that the ballot initiative process seeking a repeal was still an open issue before the D.C. Court of Appeals.

The initiative question, Roberts said, raises some of the same legal issues as the referendum question did.  And, he noted, the potential to pursue the  initiative process will not cease to exist even though the marriage law does take effect Wednesday.

The opponents still have the option of asking another Justice, or the full Court, to consider their plea for delay, but Roberts’ action makes success unlikely on any such plea.  Ultimately, the legal questions may reach the Court in a future test case after the Court of Appeals rules on the initiative maneuver.

In Johnson v. United States (08-6925), the Court rules 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court.  Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas.  The full opinion in pdf format is here.

In Reed Elsevier v. Muchnick (08-103), the Court reverses and remands, ruling that a copyright must be registered before one may file an infringement claim, but the failure of a copyright holder to have a registration does not restrict a federal court’s power to decide infringement claims involving works that are not registered.  Justice Thomas delivers the majority opinion; Justice Ginsburg concurs in part and concurs in the judgment, joined by Justices Stevens and Breyer.  Justice Sotomayor took no part in the decision.  The full opinion is here.  [Disclosure: Howe & Russell represented the respondent Muchnick in this case.]

In Mac’s Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac’s Shell Service (08-240; 08-372), the Court reverses in part, limiting the right of the holder of a franchise to sue after the franchise agreement is terminated.  Justice Alito writes the unanimous opinion of the Court, which is here.

The full texts of the opinions follow the jump.

No. 08-6925, Johnson v. United States

No. 08-103, Reed Elsevier, Inc. v. Muchnick

No. 08-240, Mac’s Shell Service v. Shell Oil Products Co.

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The petition filed by lawyers for Edward Jerome Harbison argued that lower courts have been upholding other states’ lethal injection procedures by making a simple finding that they are similar to the methods the Supreme Court upheld in a Kentucky case two years ago (Baze v. Rees).  The Harbison appeal also argued that, on closer examination, Tennessee’s procedure fails to assure that the inmate will be completely unconscious and thus will does not prevent excruciating pain during the three-drug protocol in use in that state.

Besides bypassing that case, the Court also refused to take a new look at the ongoing controversy over the constitutionality of placing religious displays — in particular, monuments to the Ten Commandments — on government property.  The Court denied review of an appeal by officials of Haskell County, Okla., urging the Justices to clarify the authority of government officials to accept privately donated religious displays on the lawn of a public building.  Lower courts are confused on the issue, the petition claimed, in the wake of the Supreme Court’s two rulings — with opposite outcomes — on the issue in 2005.

“The need for directions from this Court,” the petition contended, “is evidenced within the Tenth Circuit, where the 12 judges were evenly split on whether the panel reached the proper result” in declaring unconstitutional the display of the Commandments amid other monuments on the grounds of the county courthouse in Stigler, Okla.  A Tenth Circuit panel based its ruling partly on the fact that members of the county board had publicly endorsed the display, rather than merely passively accepting it from a private donor.  The case was Haskell County Board v. Green, et al. (09-531).

The Court also refused to review a new case that might have provided a vehicle for re-examining the so-called “exclusionary rule,” which has come under some sharp criticism among the Justices.  The new case was McCane v. U.S. (09-402).  The case specifically sought to challenge the scope of what is called the “good faith” exception to the rule that evidence obtained in an illegal police search may not be used in a criminal trial.  Under the “good faith” exception, such evideence may be used if police genuinely believed their search was legal, at the time of the search.  The new appeal sought to test whether the exception applies, if police made a search based upon their authority under a court ruling that later was overruled by the Supreme Court.

In the McCane case, Oklahoma City police searched a car they had stopped for a traffic violation, and found a pistol hidden in a pocket of the car door.  The police based their search on the Supreme Court’s 1981 ruling in New York v. Belton.  But, while the McCane case was pending in lower courts, the Supreme Court ruled in Arizona v. Gant that lower courts had been applying the Belton precedent too broadly to justify police searches.  In the McCane case, the Tenth Circuit then ruled that, while the search of the car was invalid under the Gant decision, police were entitled to rely upon Belton when they conducted the search at issue.

—————–

The Supreme Court on Monday ordered the D.C. Circuit Court to take a new look at the case testing federal judges’ powers to order Guantanamo Bay detainees released from custody — a case the Justices had granted and were to hear later this month.  In a brief order, without noted dissent, the Court said the Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.”  The case is Kiyemba, et al., v. Obama, et al. (08-1234).  The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Justices’ action has two immediate effects: first, it wipes out the Circuit Court’s earlier ruling that federal judges have no power to order release into the U.S., even temporarily, because that is an immigration matter exclusively for the President and Congress, and, second, it means that the Justices will not have any final ruling this Term on detainee matters, putting the Court on the sidelines while the two other branches of government work out where to go next on policy involving capture and detention of individuals during the government’s “war on terror.”  President Obama wants to close Guantanamo, but there are efforts in Congress to keep it open in order to assure that no detainee reaches the U.S. shores, even for further detention.  There are also efforts on Capitol Hill to block any criminal trial in the U.S. of a Guantanamo prisoner, including those who have been charged with the 9/11 terrorist attacks. A third effect of Monday’s order very likely will be that the Court may not act this Term on a second Kiyemba case (same title, docket 09-581) that offered another opportunity to explore the courts’ authority to deal with Guantanamo captives’ fate.  That case involves some of the same individuals who appealed in the case the Court agreed to hear in October.  (The granted case is now informally known as “Kiyemba I.”  The case in 09-581 is thus known as “Kiyemba II.”)

Both cases were sequels to the Supreme Court’s ruling in Boumediene v. Bush in June 2008, establishing a constitutional right for Guantanamo prisoners to challenge their continued detention.  The new appeals thus were attempts to test whether, in implementing Boumediene, federal judges had any authority to require the actual release of a detainee even in situations where the government no longer had any basis for confining them.  The government no longer considers any of the Uighurs to be enemies of the U.S., but takes the position that their movement out of Guantanamo is solely within the diplomatic power of the U.S. government to arrange for their resettlement elsewhere.

Each of the seven Uighurs involved in Kiyemba I has had an invitation to-resettle in another country than their homeland of China, where they fear death or torture.  Two have accepted invitations to go Switzerland, and five had an offer to go to the Pacific island nation of Palau or the Indian Ocean island nation of the Maldives.  The status of those invitations is in some dispute between the Uighurs’ lawyers and the Justice Department.  That, presumably, is one of the issues the Circuit Court will either attempt to sort out on its own, or asked U.S. District Judge Ricardo M. Urbina to do so.

In Monday’s unsigned (“per curiam”) order, the Supreme Court noted that “each of the detainees at issue in this case has received at least one offer of resettlement in another country.  Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay.  This change in the underlying facts may affect the legal issues presented.  No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”

In recent filings, the Uighurs’ lawyers asked the Court to go ahead and hear and decide the case but, if it wanted to refer it back to a lower court, it should return it to Judge Urbina.  The Justice Department, which has opposed Supreme Court review of the case from the beginning, urged the Court either to dismiss the case outright, or at most to return it to the Circuit Court for another review.  The Court chose to give the Circuit Court the first chance to examine the impact of the new developments, but left it with the option of passing it back to Judge Urbina to conduct the initial review.

While the order Monday brought a partial victory for the Justice Department, it also provided a partial victory for the detainees, since the Court vacated a sweeping ruling by the Circuit Court that had all but doomed the chances of any detainee winning actual release from Guantanamo unless the government were able to arrange resettlement by diplomatic efforts.

Presumably, the same Circuit Court panel that decided Kiyemba I will again have it for the next step.  The opinion in the case (last February) was written by Senior Circuit Judge A. Raymond Randolph, who has written most of the Circuit Court’s major decisions rejecting legal claims by the detainees.  His opinion was joined by Circuit Judge Karen LeCraft Henderson.  Circuit Judge Judith W. Rogers joined the result only.  It appears likely that the Circuit Court panel will call for new briefs before proceeding further.   The detainees’ lawyers do have the option of trying to get the case referred to the full Circuit Court for en banc review, if they are concerned about how the panel will react.  The government has the en banc request option, too, but has no reason to want this particular panel pushed aside.

One petition is granted, Michigan v. Bryant.  Its briefs are below.

Docket: 09-150
Issue: Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

• Opinion below (Michigan Supreme Court)
• Petition for certiorari
• Brief in opposition

The full order list is here.

A revised argument calendar for the Court’s current sitting is here.

Holding: The full Court recognizes an exception to the 1981 decision in Edwards v. Arizona and now establishes that a “break in custody” permits the police to resume questioning a suspect who had previously asked for a lawyer. Furthermore, seven members of the Court agree that if the break in custody lasts more than two weeks between interrogations, the Edwards decision does not apply to suppress a confession. Justices Stevens and Thomas do not join the fourteen-day rule in their concurrences.

The full text of the opinion follows the jump.

No. 08-680, Maryland v. Shatzer

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The Court issued two opinions today:

In Hertz Corporation v. Friend (08-1107), the Court vacated and remanded the lower court’s decision unanimously, in an opinion by Justice Breyer.

The Court held that the “principal place of business” of a corporation is the place where its high level officers direct, control, and coordinate its activities, which will usually be its corporate headquarters.

In Florida v. Powell (08-1175), the lower court was reversed and remanded by a 7-2 vote; Justice Ginsburg delivered the majority opinion and Justice Stevens dissented, joined in part by Justice Breyer.

The Court held that “Advice that a suspect has ‘the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,’ and that he can invoke this right ‘at any time . . . during the interview,’ satisfies Miranda.”

The full texts of the opinions follow the jump.

No. 08-1107, Hertz Corporation v. Friend

No. 08-1175, Florida v. Powell

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