The Supreme Court on Friday ordered both sides to file new briefs on whether the Court may hear an appeal challenging restrictions on broadcast of ads to promote a critical campaign film about presidential candidate Hillary Rodham Clinton.  The order was issued in the case of Citizens United v. Federal Election Commission (07-953), involving a constitutional challenge to disclosure requirements as applied to the promotional ads the group has prepared for the film, “Hillary: The Movie.”  (See the post just below for the text of Friday’s briefing order.)

The briefs, no longer than 3,000 words, are to be submitted by both sides on Monday, March 10, with reply briefs by the following Thursday, March 13. That schedule means the briefs will be before the Court at its next Conference, on Friday, March 14.  The Court has yet to indicate whether it will hear the case on the merits or dispost of it summarily; it also has not yet said whether it will make that decision on an expedited basis. The issue posed in Friday’s order is ”whether this Court has jurisdiction to hear the appeal” in light of a federal law allowing a direct appeal to the Justices “in any civil action, suit or proceeding required by an act of Congress to be heard and determined by a district court of three judges.”

The FEC, in a motion on Feb. 14 urging the Court to dispose of the case summarily, raised a question about the Court’s jurisdiction to rule on the case, saying that question was “not free from doubt.”

Federal campaign finance law provides for a direct appeal to the Supreme Court involving a constitutional challenge to campaign finance restrictions, when a three-judge District Court has issued a “final decision.”   But this case involves a ruling by such a District Court refusing to issue a preliminary injunction to clear the way for Citizen United’s promotional radio and TV ads about the Clinton film (the film itself is already showing in other venues).

The FEC response noted that federal appeals courts are to hear such denials of preliminary injunctions by District Courts “except where a direct review may be had in the Supreme Court.”  The law goes on to say that the Supreme Court may review a denial of a preliminary injunction if the case was required to be heard by a three-judge District Court — that is the section the Court cited Friday in seeking new briefing.  In the Citizens United case, that organization opted for a three-judge District Court, as it had a right to do, but was not required to do so.

Still, the FEC indicated that, even if it turned out that the Court did not have jurisdiction to review the Citizens United appeal at this point, it could do so after the District Court makes a final decision, or it could allow the case to go first through a court of appeals on the preliminary injunction question, and then return to the Supreme Court as a petition for certiorari, rather than as a mandatory appeal.

Either one of those latter options, if they should become the only ones available to Citizens United, would very likely be a frustration of its desire to get a quick ruling by the Supreme Court on the requirements imposed on its promotional ads; it has told the Supreme Court that, if the case is not decided by the Justices on an expedited basis, it will have lost anyway because it would not be able to broadcast the promotional ads to have an effect during the presidential primary election season that is now in full swing.

It is apparent, from the FEC’s recitation of the various review provisions, that the jurisdictional question the Court posed Friday is quite complex.  Here, in full, is the footnote in the FEC response that discusses these provisions:

“1. The question whether this Court has jurisdiction over the instant appeal is not free from doubt.  Under BCRA sec. 403(a)(1) and (3), 116 Stat. 114, suits challenging the constitutonality of any BCRA provision may be heard by a three-judge district court within the District of Columbia, and the three-judge court’s ‘final decision’ is reviewable by direct appeal to this Court.  For suits filed on on before December 31, 2006, that three-judge court procedure was the exclusive mechanism for pursuing a constitutional challenge to BCRA.  See BCRA Sec. 403(d)(1), 116 Stat. 114; cf. Wisconsin Right to Life, Inc., v. FEC, No. 04-5292, 2004 WL 1946452 (D.C. Cir. Sept. 1, 2004).  BCRA sec. 403(d)(2), 116 Stat. 114, states, however, that ‘[w]ith respect to any action initially filed after December 31, 2006, the provisions of subsection (a) shall not apply to any action described in such section unless the person filing such action elects such provisions to apply to the action.’  Appellant elected to have its suit heard by a three-judge district court.  See J.S. App 7a n.8.

“Under 28 USC 1292(a)(1), the courts of appeals have jurisdiction to review ‘[i]nterlocutory orders of the district courts’ granting or denying preliminary injunction relief, ‘except where a direct review may be had in the Supreme Court.’  This Court has jurisdiction to review the denial of a preliminary injunction ‘in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.’ 28 USC 1253 (emphasis added).  This case was not ‘required’ to be decided by a three-judge court insofar as appellant could have presented its constitutional claims to a single-judge court.  On the other hand, under BCRA Sec. 403(d)(2), appellant was entitled to a three-judge district court as of right, and once appellant elected that option, BCRA ‘required’ that a three-judge court be convened to decide the case.  That may be sufficient to trigger the application of Section 1253.  If this Court were to determine that it lacks jurisdiction over the instant interlocutory appeal, the district court’s ‘final decision’ in the case would still be reviewable by this Court pursuant to BCRA Sec. 403(a)(3), 116 Stat; 114, and the grant or denial of preliminary injunctions by three-judge district courts in cases in which the plaintiff elects a three-judge panel would be reviewable in the court of appeals (and in this Court via a petition for certiorari).”

A copy of today’s orders — directing the parties to submit briefing in Citizens United v. FEC (07-953) — is now available here. The order, in a case involving a film about New York Senator and Democratic presidential candidate Hillary Rodham Clinton, reads as follows:

The parties are directed to submit briefing addressing the question whether this Court has jurisdiction to hear the appeal in light of the language in 28 U.S.C. §1253 permitting a direct appeal “in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” The briefs, not to exceed 3,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, March 10, 2008. Reply briefs, not to exceed 2,000 words, may be filed with the lerk and served upon opposing counsel on or before 2 p.m., Thursday, March 13, 2008.

The Justices are scheduled to hold a private conference at 10 a.m. If any orders are released this afternoon, we will post them promptly. Otherwise, orders are expected to be released Monday morning.

To view our list of petitions to watch at today’s conference, click here.

On February 13, Akin Gump filed this Respondent’s brief in US v. Clintwood Elkhorn.  Steven C. Wu, an associate in the firm’s DC office who worked extensively on the case, wrote the following summary of the case and the arguments in the merits brief.

The issue in the case is whether a constitutional challenge to a coal export tax may be brought under the Tucker Act or, instead, must be brought under the more limited procedures available for tax refund claims.

The Export Clause of the U.S. Constitution, art. I, § 9, cl. 5, states: “No Tax or Duty shall be laid on Articles exported from any State.”  Notwithstanding the clarity of this command, Congress in 1978 levied an excise tax on coal production and sales and expressly directed that the tax would apply to sales of coal for export.  In 1998, several coal companies successfully challenged the constitutionality of this export tax in federal district court.  The IRS ultimately acquiesced in the decision.

The constitutionality of the coal export tax is no longer an issue.  Instead, the current dispute concerns the proper procedural vehicle for bringing claims to recover damages for previously collected taxes.  Two different sets of statutes could apply.  The Tucker Act, 28 U.S.C. § 1491(a), waives the United States’ sovereign immunity for (among other things) claims founded upon the Constitution.  However, not every constitutional provision provides a cause of action under the Tucker Act — only “money-mandating” provisions do.  That is, a constitutional provision must either expressly or implicitly promise money damages for its violation in order for it to provide a cause of action against the United States under the Tucker Act.  For such causes of action, the statute of limitations is six years.

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According to media reports, Linda Greenhouse, the New York Times’ Supreme Court reporter for most of the last 30 years, has accepted a buyout offer from the newspaper. In an email, Greenhouse said she planned to cover the Court through the end of the term, though she also noted that the Times had not officially accepted her acceptance of the offer, as the buyout window remains open until March 5.

News of Greenhouse’s decision was reported first at the National Review online (see here). Click here for an account from the Associated Press, and here for one in the New York Observer.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.

The transcript of today’s argument in Exxon v. Baker (07-219) is now available here.

Commentary

If the Supreme Court voted immediately in the huge oil spill case heard on Wednesday, and voted the sentiments the Justices expressed throughout 90 minutes of oral argument, this might well be the outcome: Exxon Mobil Corp. and its shipping subsidiary may well have to pay some punitive damages, but not $2.5 billion. The company’s core arguments — that any award of punitive damages violates two centuries of maritime law history and modern congressional policy, and that it was not responsible for the ship captain’s misconduct that led to the spill — did not appear to have fared well, although those points did find some sympathy on the bench. But the backup argument — that $2.5 billion in damages was just too high — loomed as the likely point on which a majority of an eight-Justice Court could agree (with some uncertainty about what the exact final figure might be). The Court will actually cast its first vote on the case on Friday, but that would be only the beginning.

First impressions, based on what was said or intimated at a fast-paced oral argument, can be quite misleading. This Court usually divides quite deeply in considering punitive damages claims — a factor that is even more complex in this case, because one Justice (Samuel A. Alito, Jr.) is not taking part, leaving at least a chance of a 4-4 split, perhaps on some but not all issues. But first impressions also might qualify as reasonable reactions, when what was asked and answered is parsed closely, and when atmospherics are taken into account. It was apparent that Exxon’s lawyer, Washington attorney Walter Dellinger, was under serious challenge throughout his argument, and critically so on his efforts to get the Court to forbid any punitive damages award for this kind of maritime accident. But it was equally apparent that the lawyer for the individuals and businesses who were awarded punitive damages, Stanford professor and lawyer Jeffrey L. Fisher, had to deal with a spreading view on the bench that there had to be some curbs on punitive damages in the maritime context — especially when the punitive verdict runs into the billions.

With Justice Alito out of the case, it could be that the Court would split 4-4 on Exxon’s liability for at least some punitive damage award — an outcome that would uphold the Ninth Circuit Court’s conclusion that a punitive award was justified. It was not apparent that there were five votes for Exxon’s claim that the Court had long ago decided against liability for shipowners who do not take a direct part in crew misconduct, or the company’s view that the captain of a huge supertanker does not rank high enough in a corporate hierarchy to hold the company itself to blame for his misconduct. If the Court splits 4-4 on each of those points, it would not decide them, but Exxon would lose because of the Ninth Circuit’s legal conclusions.

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Today’s opinion by Justice Kennedy in Federal Express v. Holowecki (06-1322) is now available here. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined. It was the only merits decision of the day.

UPDATED 2:14 p.m.

The Supreme Court ruled on Wednesday, by a 7-2 vote, that a worker claiming age bias in the workplace may start a case before the Equal Employment Opportunity Commission only if he or she spells out more than a bare allegation of discrimination and the name of the employer.  A “charge” necessary to open a case, the Court concluded, must include enough substance so that it be “reasonably construed” as a request for EEOC to take action to protect the workers’ rights or to settle a dispute over those rights.  Largely deferring to EEOC’s views of what might constitute a “charge,” and thus start legal time lines to running, the Court said the proper test is whether an objective observer examining what the complaining worker has filed is enough to ask the agency “to activate its machinery and remedial processes.”

The ruling came in the case of Federal Express v. Holowecki (06-1322). This was the only merits decision of the day.  Justice Anthony M. Kennedy wrote for the majority; Justice Clarence Thomas dissented, joined by Justice Antonin Scalia.

The ruling concluded that the material submitted in this case did constitute a “charge.”  The Age Discrimination in Employment Act — the anti-bias law at issue in the specific case — requires a worker to file a timely charge of bias with EEOC before bringing a lawsuit to pursue the claim.  The charge must be filed within 180 days after the act of discrimination occurred, unless the state where the incident arose has its own age bias law, in which case the time limit is 300 days.  Theworker must wait 60 days after filing a charge before suing in court.

The specific case involved a group of employees of Federal Express Corp.l, the delivery comapny, claiming that the company engaged in discrimination againstw its older employees.  One worker filed an intake questionnaire at EEOC making he claim, but did not treat it as if it were a formal charge.  EEOC did not treat it as the filing of a charge, and did not start an investigation.  Wednesday’s ruling, however, concluded that the worker in filing the paper at EEOC had come close enough to EEOC’s filing requirements to constitute a “charge” under ADEA.

At the close of the Court’s opinion, after making some mild criticism of EEOC for the way it handled its charge-filing process, Justice Kennedy suggested that “to reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate.”

(This post will be expanded following this morning’s oral argument, at about noon.)

At 10 a.m., the Court is scheduled to hear argument in Exxon v. Baker (07-219), on the legality under federal maritime law of the $2.5 billion punitive damages award resulting from the Exxon Valdez oil spill. Walter Dellinger of Washington, D.C., will argue for the petitioner, and Jeffrey Fisher of Stanford Law School will argue for the respondent. The argument is scheduled to last 90 minutes.

In advance of the argument, the Court may release one or more opinions on the merits.

The transcript of today’s argument in Allison Engine v. United States (07-214) is now available here.

Yesterday, in conjunction with the Stanford Supreme Court Litigation Clinic, Akin Gump filed this cert. petition in the case of Cone v. Bell (the appendix is here). The full Question Presented in this habeas case is reproduced after the jump.

Tom is counsel of record, and along with him on the brief are Patricia Millett, also of Akin Gump; Paul Bottei of the Office of the Federal Public Defender of the Middle District of Tennessee; Amy Howe and Kevin Russell of Howe & Russell; and Pam Karlan and Jeff Fisher of the Stanford Clinic. The students in the Clinic who so ably assisted are Scott Stewart, Barbara Thomas, and Alan Mouristen.

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Today’s opinion by Justice Thomas can be downloaded here.

The Supreme Court on Tuesday — in the only decision of the day – overturned a federal appeals court ruling on how courts are to treat ”me too” evidence — workplace discrimination testimony by workers other than the one raising a job bias claim.  In a unanimous decision, written by Justice Clarence Thomas, the Court found the Tenth Circuit Court in error in deciding on its own, without remanding to a trial judge, that such evidence is admissible.

Federal rules, the Court said, “do not make such evidence per se admissible or per se inadmissible.”  It is up to District Courts, in trying job bias cases (here, an Age Discrimination in Employment Act case), to sort out the fact-intensive nature of such evidence.  “Whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case,” the opinion said.

The Tenth Circuit was faulted by the Court, Justice Thomas wrote, because it misread a trial judge’s ruling as if it had applied a per se rule against admission of “me too” testimony.  The Circuit Court had gone on to conclude, on its own, that that kind of testimony is relevant and not unduly prejudicial.

The case (Sprint/United Management Co. v. Mendelsohn, 06-1221) involved an appeal by a business development subsidiary of Sprint Nextel Corp., arguing that the appeals courts are split on the admission of “me too” testimony.  The appeal argued that the Tenth Circuit stood alone in finding such evidence admissible.