A major test case on the power of the President to appoint and remove government officials apparently is on its way to the Supreme Court. On Monday, the D.C. Circuit Court split 5-4 in denying en banc review of a case challenging the constitutionality of a key provision of the Sabanes-Oxley Act, passed in the wake of the Enron and Worldcom accounting scandals.  Lawyers for those seeking en banc review had said earlier that, if that move failed, they would then appeal to the Supreme Court.

The close division in the Circuit Court probably enhances the chances that the Justices would agree to hear and decide the case.

The test case is Free Enterprise Fund, et al., v. Public Company Accounting Oversight Board, et al. (Circuit docket 07-5127). 

The 2002 law at issue was designed to protect investors from scandals involving publicly traded companies by regulating the firms that do their accounting.  The law created the Public Company Accounting Oversight Board, a private board exercising government power; its members are not appointed by the President, and cannot be removed by presidential action. The board members are appointed by the Securities and Exchange Commission, which has limited removal power.

The Circuit panel that decided the case in August split 2-1 on Monday in denying panel rehearing.  In the en banc Court, Circuit Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing. Chief Judge David B. Sentelle and Circuit Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported en banc review.  (Only the Circuit Court’s active judges voted on the question.)

A legal gain for Guantanamo Bay detainees, clearing the way for judges to move forward with the captives’ court challenges, goes too far and must be rolled back, the Justice Department will argue in a new filing expected later Tuesday. (NOTE: This post will be expanded when the document is filed.)

The Department’s plan was outlined broadly late Monday in a report in three detainee cases pending before U.S. District Judge Ellen S. Huvelle (the lead case is Ameziane v. Bush, 05-392).  The report was a joint one by attorneys for the government and for detainees, replying to a Nov. 7 order by Judge Huvelle seeking their views on the duties to be imposed on both sides and the procedures to be followed as the detainees’ habeas challenges go into the merits stage.

Judge Huvelle up to now has taken no action on the habeas cases before her, because those had been transferred temporarily to Senior Judge Thomas F. Hogan, who is coordinating some 200 cases pending before many of the District judges in Washington.  On Nov. 6, Judge Hogan issue a “case management order” laying out the procedural framework for all the cases he is coordinating, leaving it up to individual “merits judges” to decide whether to modify it.

In response, the other judges have begun reacting to the Hogan order, with some embracing it as written and others making changes.  For detainees and their lawyers, the Hogan order and the followup responses by the other judges cleared the way for the habeas challenges to go forward. Some detainees’ counsel had grown uneasy, since it has been five months since the Supreme Court in Boumediene v. Bush gave the detainees a constitutional right to challenge thier detentions anew.  Most of the cases have been on hold during that time.

In the filing in Ameziane, the Justice Department’s part of the report said that its lawyers will file on Tuesday a plea for Judge Hogan to relax some parts of his order, or, if he does not do so, to set the stage for the Department to file an immediate appeal to the D.C. Circuit Court.

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On Friday we filed this cert. petition in No. 08-645, Abbott v. Abbott.  At issue in the case is whether a ne exeat clause – which precludes a parent from taking his or her child out of the country without the other parent’s permission – is a “right of custody” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, thereby requiring the child’s return.  The courts of appeals are divided on this question; moreover, the approach taken by the majority of circuits is at odds with the approach employed by the overwhelming majority of foreign courts that have considered the question.

In addition to Akin Gump and the Stanford Law School Supreme Court Litigation Clinic, our co-counsel on the brief is Adair Dyer of Austin, Texas.  Stanford students Dan Matro, David Schwartz, and JP Schnapper-Casteras worked extensively on the case.

No oral arguments are scheduled and no non-capital orders are expected to be released from the Court today. Oral arguments will resume December 1.

Menaka Kalaskar discusses last week’s decision in Winter v. NRDC (No. 07-1239).  Additional information on the case is available on SCOTUSwiki, here.

“‘To be prepared for war is one of the most effectual means of preserving peace.’”  So begins Chief Justice Roberts’ opinion in Winter v. NRDC—a quote from George Washington’s Annual Address to Congress, and a signal that the Court’s weighing of interests comes down “strongly in favor of the Navy.”  Indeed, in its twenty-four-page majority opinion, the Court declares numerous times that the balance of hardships and the public interest—two of the four preliminary injunction inquiries—weigh so overwhelmingly in favor of the Navy that it doesn’t even “strike [the Court] as a close question.”  The Court finds that the district court abused its discretion in imposing sonar shutdown and power-down requirements on the Navy, and it reverses and vacates those portions of the injunction.

The Court begins its discussion of the case with the lower court rulings on NRDC’s likely success on the merits.  It then moves on to the lower court determinations of the second preliminary injunction inquiry—the threat of irreparable harm or injury.  The Court agrees with the Navy that the circuit court’s “possibility” of harm standard is not stringent enough.  Instead, the Court asserts its “frequently reiterated standard” that irreparable injury be “likely in the absence of an injunction.”  Granting a preliminary injunction based only on a possibility of harm is “inconsistent” with an injunction’s purpose as an extraordinary remedy requiring a “clear showing” of success by the plaintiff.  The Court notes that the Navy challenged only two of six restrictions in the preliminary injunction, and it finds fault with the district court’s failure to reconsider the irreparable harm question in light of this narrow challenge.  Because four other restrictions went unchallenged, the district court should have reconsidered whether the four restrictions were sufficient to prevent the irreparable injury alleged by NRDC. 

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On January 22-23, The Review of Litigation, a student publication at the University of Texas School of Law, will hold a symposium in Austin entitled “The Rise of Appellate Litigators and State Solicitors General.” Admission is free, but CLE credits are available for $150. Click here for more information, and here for the full list of speakers.

Today’s orders list is now available here. The list contains no grants of certiorari.

The Court has dismissed as improvidently granted (see here) the writ of certiorari in Bell v. Kelly (07-1223), on whether the deferential standard in the federal habeas statute should be applied to claims a state court did not consider.

The Supreme Court on Monday dismissed a criminal case it had heard just last Wednesday, saying it should not have granted review — that is, the case had been “improvidently granted.” The case is Bell v. Kelly (07-1223), involving a split in lower courts on the degree of deference that federal habeas courts must give to a state court finding.  As is customary when the Court takes such action, it gave no explanation.

The Court granted review of no new cases.

Among the issues the Court declined to hear:

** A plea to reconsider a 23-year-old decision, Wainwright v. Witt, laying down the constitutional standard on when a juror who expresses opposition to the death penalty may be barred from serving on a capital case jury. (Campbell v. Louisiana, 08-399)

** An appeal seeking clarification of the duty of state and local governments to provide jail or prison inmates a chance for physical exercise, and to offer disabled inmates equal access to beknefits or programs. (Orange County v. Pierce, et al., 08-195)

** A test of the constitutionality of a state ban on all payments to those who circulate nominating of ballot measures petitions on the basis of the number of signatures they gather. (Ohio v. Citizens for Tax Reform, et al., 08-151)

** A plea for the Court to spell out a standard for lower courts to follow on limiting the right to sue for someone who has filed scores of lawsuits. (Molski, et al., v. Evergreen Dynasty Corp., et al., 08-38)

Even though the Court last Friday had agreed to rule on a key issue over re-trial of criminal charges in a case growing out of the Enron Corp. scandal, on Monday it denied review of one of the appeals that had raised that issue.  Three former executives of an Enron subsidiary, Enron Broadband Services had been convicted of some of the charges against them, but the jury could not agree on other charges against each one.  The Fifth Circuit Court allowed re-trial on the charges on which the jury could not agree, and each of the individuals filed a separate appeal to the Supreme Court.

The Court agreed to hear the case of former EBS vice president F. Scott Yeager (08-67), but refused on Monday to hear — or keep on hold — the separate appeal by EBS’ former co-chief executive officer, Rex Shelby (08-58). The Court, as is customary, did not explain its differing treatment of Shelby, but the U.S. Solicitor General had argued that the Circuit Court had not applied the same analysis to the re-trial in Shelby’s case as it did in Yeager’s.  The Court on Monday took no action on the third of the EBS officer’s appeals, that of Joseph Hirko (08-40).  That case presumably will be disposed of on the basis of the coming ruling regarding Yeager.

The Court is now in recess until it holds a private Conference on Tuesday, Nov. 25.

At 10 a.m., the Court will release at least one opinion, as well as the remaining orders from the Justices’ private conference last Friday. We will provide coverage of all developments.

No oral arguments or private conferences are scheduled at the Court this week. Oral arguments will resume December 1.

On Monday, the Court will release at least one opinion, as well as the remaining orders from the Justices’ private conference last Friday. We will provide coverage of all developments at 10 a.m. Eastern. To view the list of cases granted last Friday following the conference, click here.

On Thursday, U.S. District Judge Richard J. Leon will deliver an oral ruling on a habeas petition filed by six Bosnian detainees in Boumediene v. Bush — the same Guantanamo detainees at the center of last term’s Supreme Court decision that found Congress could not forbid such challenges. Also on Thursday, a D.C. Circuit panel will hold a hearing in Bismullah v. Gates on the continuing validity of an alternative procedure for challenging detention established in the Detainee Treatment Act of 2005.

Merits briefs for petitioners are due on Monday in Kansas v. Ventris (07-1356), Montejo v. Louisiana (07-1529), Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607), Puckett v. United States (07-9712), Corley v. United States (07-10441), and Vermont v. Brillon (08-88), and on Friday Boyle v. United States (07-1309). No merits briefs for respondents are due this week.

(Links above direct to case pages on SCOTUSwiki.)

With no noted dissents, the D.C. Circuit Court on Friday refused to grant review before the full Court of the government’s attempt to keep 17 Guantanamo Bay detainees out of the U.S., leaving the issue at least initially with a three-judge panel.  In an order released late in the day, the en banc Court of ten judges said that no judge had asked for a vote on the detainees’ plea for initial review by the full Court.

That means that the panel will go forward with a hearing on Monday, Nov. 24, at 9:30 a.m.  The panel includes Circuit Judges Karen LeCraft Henderson and Judith W. Rogers and Senior Circuit Judge A. Raymond Randolph.  Over Judge Rogers’ dissent, that panel on Oct. 20 blocked a federal judge’s order to release the 17 Chinese Muslim Uighurs, and to allow them to live at least temporarily in the U.S.

Following that stay order, the Uighurs’ lawyer sought to have the case put before the en banc Court, arguing that scores of cases were now moving forward before District Court judges, and they would be aided by resolution of their authority to order release as a remedy if habeas challenges to continued confinement succeed.

Friday’s order does not mean that either side would be barred from seeking en banc review after the panel issues its decision.

The lead case among six government appeals is Kiyemba, et al., v. Bush (08-5424).

The first ruling by a federal judge on a constitutional challenge by Guantanamo Bay detainees to continued confinement — challenges permitted by the Supreme Court last June — will come Thursday morning, U.S. District Judge Richard J. Leon indicated in an order Friday. The docket entry showed that Leon will announce an “oral opinion” that day at 10 a.m. in his courtroom in downtown Washington.

Judge Leon has been holding mostly closed-door sessions for the past two weeks, testing the Pentagon’s legal and factual basis for continuing to treat the six detainees in the case as “enemy combatants.”

The ruling will come, by coincidence, in the same case as one of those decided in a combined opinion by the Justices on June 12 — Boumediene, et al., v. Bush, et al.  That case involves six individuals who were captured in Bosnia and turned over to U.S. officials. They have been at Guantanamo Bay for more than six years. (The District Court docket number is 04-1166.)

As matters have turned out, the Boumediene case — which Judge Leon originally decided in 2005 — returned to his Court following the Supreme Court decision last Term, and he has been moving those cases along more rapidly than any of the other judges in District Court in Washington, where more than 200 such cases are pending.

The Guantanamo habeas cases filed in the Washington federal court originally were under the federal habeas statute.  But Congress stripped the federal courts of their authority to decide those cases in laws passed in 2005 and 2006.  The Supreme Court, however, ruled that those laws unconstitutionally deprived the detainees of a right of habeas, guaranteed by the Constitution’s so-called Suspension Clause.

With the Boumediene ruling in hand, lawyers for the Guantanamo prisoners returned to District Court to press this new constitutional right. Some of them are separately challenging their confinement in the D.C. Circuit Court, under an alternative procedure enacted by Congress in the Detainee Treatment Act of 2005.

Almost simultaneously with Judge Leon’s opinion hearing on Thursday, a three-judge panel of the D.C. Circuit will be holding a hearing on the Justice Department’s efforts to shut down all 190 of the DTA cases, on the theory that Congress did not intend to have two separate judicial forums for detainees’s challenges.  The Circuit Court hearing is at 9:30 a.m. Thursday, with the detainee case — Bismullah v. Gates (06-1197) — to follow an unrelated case starting at 9:30.  The earlier case is scheduled for an hour and 10 minutes, indicating that Bismullah would probably not begin before 10:45 a.m.

The Court this afternoon accepted five cases for review, filings for which are available after the jump. The orders list is available here.

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The Supreme Court on Friday added five new cases to its decision docket for the current Term, including a test of the constitutionality of a federal campaign finance ban as applied to a critical movie about Sen. Hillary Clinton when she was running for president (Citizens United v. Federal Election Commission, 08-205). The Court also agreed to decide whether the Constitution requires an elected state judge to step aside from deciding a case involving the financial interests of a major campaign donor (Caperton v. A.T. Massey Coal Co., 08-22).

In the other three cases, all focusing on criminal law issues, the Court will decide whether an individual can be retried on charges on which a jury could not agree in an earlier trial in which the jury acquitted on other charges (Yeager v. U.S., 08-67), whether using a telephone or e-mail to buy drugs for personal use converts that minor possession crime into a felony, with heavier penalties (Abuelhawa v. U.S., 08-192), and whether a federal law imposing an enhanced sentence for firing a gun during a drug crime or other violent crime applies if the gun was fired accidentally or involuntarily (Dean v. U.S., 08-5274).

The cases probably will be argued in the session that begins Feb. 23 and continues through March 4.

The new campaign finance case involves a plea by a conservative advocacy group, Citizens United, to create a new exception to a 2002 law’s ban on radio or TV ads that corporations and labor unions air close to election time, so that the ban would not apply to a feature-length movie aimed at a candidate for President or for Congress.  The appeal also urges the Court to strike down the 2002 law’s disclosure requirement for election-season broadcast ads when those ads are not subject to the ban itself. And it seeks to test whether a 2003 Supreme Court decision bars all challenges to the law’s disclosure requirements, even if the challenge is an as-applied claim.

The ban at issue in the case is the so-called “electioneering communications” provision of the Bipartisan Campaign Reform Act of 2002.  It bars corporations (including non-profit firms) and labor unions from using their own treasury funds to finance ads naming a federal candidate, if the ad appears on radio or TV 30 days before a primary election or nominating convention or 60 days before a general election.

Citizens United had prepared a film, titled “Hillary: The Movie,” and it released it to theaters and for store sales on DVD. It did not go forward with plans to put out the movie in TV-on-demand access on cable TV, because it feared the FEC would apply the ad ban to it.  A federal District Court ruled that the movie about Sen. Clinton was the kind of radio and TV broadcast that ran afoul of the ban, interpreting it as a call to voters not to support her because she was unfit for the presidency.  Citizens United also prepared a similar critical film about Sen. Barack Obama, titled “Hype: The Obama Effect,” and it, too, was released during the campaign.

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The Justices are scheduled to hold a private conference this morning, orders from which will be released this afternoon or on Monday. To view our list of petitions to watch at today’s conference, click here. Oral arguments will resume December 1.

No oral arguments are scheduled and no non-capital orders are expected to be issued today from the Court. Oral arguments are next scheduled for December 1.

Analysis

If a case does not fit within a constitutional pigeonhole, is there no other way to define it so that a legal dispute can be decided?  That was the lingering question Wednesday as the Supreme Court tried to hack its way through a thicket of constitutional labels, with the legal fate of monuments donated by private groups and placed in government-owned parks hanging in the balance.  The case of Pleasant Grove City v. Summum (07-665) seems to have much to do with “public forum,” “limited public forum,” “government speech,” “private speech,” and “viewpoint discrimination,” among other categories. But the Court’s members seemed unpersuaded that any of them is just right for this case.  The Justices weren’t even sure which part of the First Amendment is really at issue — free speech, or church-state separation.

Justice Anthony M. Kennedy spoke disparagingly, saying “this case is an example of the tyranny of labels.”  He also wondered somewhat forlornly: “Does the law always require us to adopt an all-or-nothing position?….Do we have to decide this case that it’s all or nothing?”  Justice Stephen G. Breyer, on the same theme, asked: “Are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?”

Justice David H. Souter suggested that “the tough issue here” is that “there is in fact a mixture, that it is government [speech] and private [speech]…We haven’t had this kind of a challenge before.”

Part — perhaps most — of the Court’s difficulty in pursuing a flexible basis for deciding the case was that standing before the Court were three lawyers each of whom argued for a simple, mainly label-driven outcome.  One said mere acceptance of a monument, whatever its message, turns it into “government speech.” One said the choice of monuments is simply what “government as curator” does, as in selecting paintings for a museum. And one said that a public park is a “public forum,” so monuments can’t be accepted or rejected for display there on the basis of what they say.

Although the Court did not appear convinced that it could rely on such simplicity, Justice Antonin Scalia provided a reminder that some ground of decision had to be found.  “We need a clear rule here,” he said. “We can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement [is].”  (It was plain that Justice Scalia, for himself at least, would be content with a decision that government may explicitly embrace a religious monument without fretting about either part of the First Amendment.)

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The transcript of today’s argument in Pleasant Grove City, UT v. Summum (07-665) is now available here.

The transcript of today’s argument in Bell v. Kelly (07-1223) is now available here.