Today, Howe & Russell and the Stanford clinic are filing this reply brief in Meacham v. Knolls, No. 05-1605.  Stanford students Allan Mouritsen, Scott Noveck and Scott Stewart assisted on the brief.  The case involves the burdens of proof in disparate impact actions under the Age Discrimination in Employment Act. 

For those interested, here are petitioner’s opening brief, respondents’ brief, and the brief of the United States as amicus supporting petitioners.

The case will be argued on April 23, 2008.

UPDATE 12:10PM: Here are the amicus briefs as well:

Supporting Petitioners: AARP/NELA

Supporting Respondents: Chamber of Commerce, Assoc. Corporate Counsel, Equal Employment Advisory Council, General Electric, National School Boards Assoc.

Today we also filed the Brief for the Petitioner in Greenlaw v. United States, No. 07-330.  The case presents the question whether a court of appeals may sua sponte order an increase in a criminal defendant’s sentence to correct a sentencing error when the Government has not filed an appeal or cross-appeal.

The brief was written with the Stanford Supreme Court Litigation Clinic.  The Stanford Team included Scott Coyle, Menaka Kalaskr, and Rachel Lee.

The Justice Department on Monday night urged the Supreme Court to put an end to further court action in a massive lawsuit accusing a broad group of businesses of helping the former South African government maintain rigid separation of the races under the apartheid policy (American Isuzu Motors v. Ntsebeza, et al., 07-919).  As U.S. Solicitor General Paul D. Clement had signaled on Feb. 1, the government filed an amicus brief arguing that U.S. courts should not allow the “unprecedented and sprawling” litigation to proceed on the legal theory behind its $400-billion-plus claims against U.S. and foreign business firms.  The brief can be downloaded here.

The brief contended that the lawsuit by private parties against businesses that operated in South Africa during the apartheid era would bring about a ”dramatic expansion” of U.S. law, particularly the Alien Tort Statute, with significant consequences for foreign relations. 

When the 34 companies filed their appeal on Jan. 10, they raised three questions.  The Solicitor General urged the Court to grant review on only the second of those three, saying the Second Circuit Court had not decided the other two.

The issue that the Court should decide — and reject it as a claim, the government said – is whether a private party may be sued under the Alien Tort Statute for aiding and abetting a violation of inernational law by a foreign government in its own territory.  The Solicitor General noted that, if the Court rejects that theory, it would permit the early dismissal of cases like this one.  If that theory is allowed to stand, the brief contended, it would invite similar lawsuits to be filed.  In fact, it suggested, the Circuit Court ruling “virtually invites an ATS action in New York whenever there are allegations of human rights violations anywhere in the world.”

That is the theory on which the Second Circuit ruled that the case could proceed, at least through some pre-trial stages.

The first question raised in the companies’ petition is whether the case should be dismissed on “prudential” grounds specific to this case, in the face of opposition by U.S. and foreign governments.  The Solicitor General said that, while the Circuit Court had raised the prospect that, at some time, the District Court might dismiss the case on case-specific grounds, the appeals court did not actually rule on that point.

The third question posed in the firms’ petition — whether a private party could be held liable under the Alien Tort Statute for violating international law standards established by a treaty against genocide — also was not decided by the Circuit Court, the government noted.    

We filed this brief on behalf of the petitioner in Burgess v. United States, No. 06-11429, on Tuesday.  The case presents the question whether the 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) – which applies to individuals convicted of certain federal drug offenses who have a prior “felony drug offense” conviction – applies to a defendant who was previously convicted of a state drug offense classified by the state as a misdemeanor by punishable by more than a year’s imprisonment.   The brief was prepared with the assistance of three students from our Winter Term Supreme Court Litigation class at Harvard: Nicholas Barnaby, Catherine McCaw, and Elyse Schneiderman. 

The following post is by Monica Sekhon, an associate in Akin Gump’s DC office who worked on the petition discussed. 

We filed this cert. petition Friday in the case of Centerior Energy v. Mikulski, a case that raises the question of when a federal court may exercise jurisdiction over a state law claim that turns on a disputed issue of federal law.  Respondents, shareholders of petitioners FirstEnergy Corporation and its subsidiaries, filed suit against petitioners in state court seeking a refund of allegedly overpaid taxes under state law claims of breach of contract and fraudulent misrepresentation.  Respondents’ suit turns on a dispute over the proper interpretation of a federal tax law provision that affects the amount of taxes owed by shareholders to the IRS.  Petitioners’ interpretation was reflected on forms that they are required by federal law to file with the IRS and to distribute to shareholders.  Respondents claim that they relied on these forms and, consequently, overpaid their taxes.  After petitioners removed the case to federal court, the district court denied respondents’ motion to remand on the ground that the claims raised a disputed and substantial question of federal law - namely, the interpretation of a federal tax provision.

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The Court granted six cases in an Order List that be downloaded here. The cert. filings in all six cases are now available after the jump.

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UPDATE Friday 3:40 p.m.  The Court issued no order in this case on Friday.  The next chance for an order probably is next Tuesday morning.

Both sides in the $40 billion investors’ lawsuit against major investment bankers, growing out of the Enron scandal, moved this week to try to influence how the Supreme Court deals with a pending appeal in that case (California Regents v. Merrill Lynch, et al., 06-1341). The bankers on Wednesday asked the Court simply to deny review of the investors’ appeal, thus leaving intact a federal appeals court’s rejection of the lawsuit. The investors countered on Thursday that the Court should grant review and decide their case or, at least, send it back to lower courts for a fresh look, with either of those moves potentially giving the case new life.  Both supplemental briefs were filed in the wake of the Court’s ruling on Tuesday against investors in a case raising similar legal issues — Stoneridge Investment Partners v. Scientific Atlanta (06-43).

Because the Court is considering the California Regents’ petition at today’s private Conference, according to the Court’s electronic docket, it presumably also will examine the two new briefs before deciding what action to take.  The investment banks’ supplemental brief can be downloaded here, and the investors’ here.

The two sides, predictably, viewed the Stoneridge and Regents cases in starkly different ways: the bankers contended that the two cases were indistinguishable, so the Court’s Tuesday decision leaves nothing of the Regents’ claims, while the investors argued that the Court’s ruling was narrow and only applied to the quite different factual pattern in the decided case.

In Stoneridge, the Court, by a 5-3 vote, ruled that investors ordinarily could not sue for securities fraud if their lawsuit targeted business partners who did not directly mislead investors, but engaged in joint activity with a company whose executives did engage in a scheme to manipulate the price of the latter’s stock. The lawsuit there was based on a theory of so-called “scheme liability.”  While the Court, in the opinion by Justice Anthony M. Kennedy, spoke in fairly broad terms, it also noted that the Stoneridge case involved business partners whose activity was “beyond the securities markets — the realm of financing business” and involved, instead, “purchase and sale contracts — the realm of ordinary business operations.”

The bankers’ new brief said returning the case to the Fifth Circuit Court for another look “would be inappropriate…Stoneridge adopted the legal premises on which the Fifth Circuit decision in this case relied, and rejected the theory of ’scheme liability’ that petitioner has advanced in this case because that theory fails to satisfy the element of reliance.”  The two cases, the bankers’ brief added, involved “extraordinarily similar” facts.   The brief also quoted from the Regents’ website, saying — in advance of the Court’s decision — that the ruling “will determine if the investors defrauded in the Enron scandal can proceed with their claims and recover their losses from the banks.”

Reacting, the investors’ new brief argued that the Tuesday decision “involved liability of mere customers or suppliers,” while the Regents’ case involved “financial professionals [who] deliberatelhy misled investors.” Thus, the brief said, the asserted difference “makes this case an appropriate one to grant certiorari and clarify the scope” of the securities fraud law “where it matters most — in relationship to deliberately misleading conduct of investment bankers, underwriters and securities analysts who had a duty to speak truthfully.”

The Court’s action on the Regents case may be announced as early as this afternoon and, if not then, perhaps on Tuesday, when the next round of orders is due to be released (following the holiday Monday).

The following is by Christopher R. Pudelski, an associate at Akin Gump who assisted in the preparation of the brief discussed in this post.

On Tuesday, we filed this amicus brief in Quanta Computer, Inc. v. LG Electronics, Inc., No. 06-937, which presents the question whether patent rights are exhausted by a licensee’s authorized sale of a patented product to an authorized purchaser, where that product has no reasonable use other than in practicing the patented invention.

The case arises out of a lawsuit brought by LG Electronics, Inc., et al. (”LG”), against Quanta Computer Inc., et al., for infringement of certain patents in LG’s portfolio. LG and Intel Corporation entered into a licensing agreement that granted Intel authority to sell microprocessors and chipsets embodying essential features of LG’s patents. Intel then sold the licensed products to Quanta and other purchasers, who then incorporated them into computers and file servers for resale. In a separate agreement with Intel, LG required Intel to notify its prospective purchasers (like Quanta) that they did not receive a license from LG to use the products purchased from Intel to combine with non-Intel products. Quanta purchased an ongoing stream of these products from Intel and combined them with non-Intel products for resale. LG sued for infringement.

The district court granted Quanta’s motion for summary judgment on the ground that Intel’s authorized sale of the products exhausted LG’s patent rights. On reconsideration, the district court upheld its finding with regard to LG’s apparatus claims, but held that LG’s method claims were not exhausted. The Federal Circuit reversed. It held that the patent exhaustion doctrine did not apply to conditional sales, and that these sales were conditional given LG and Intel’s purchaser-notification agreement.

Our amicus brief argues in support of neither party on behalf of the Biotechnology Industry Organization, the principal trade association representing the biotechnology industry worldwide. The brief attempts to: (i) educate the Court about one important and complicated context in which patent arguments arise; (ii) highlight the significant legal distinctions between the biotechnology industry and other industries; (iii) limit the Court’s holding to the type of practice before the Court; and (iv) to explain the adverse implications of a broad-sweeping ruling. The brief argues that the patent exhaustion doctrine does not authorize purchasers to “make” self-replicating products - such as transgenic, self-replicating seeds and DNA - which are unique to the biotechnology industry. The brief also argues that the doctrine does not apply to validly restricted sales and purchases that reasonably protect the patentee’s retained rights while permitting reasonable use of a product.

The D.C. Circuit Court rejected a plea by lawyers for a 21-year-old Canadian being held prisoner at Guantanamo Bay, Cuba, to delay the start on Thursday of the first war crimes trial until after the federal civilian courts rule on the power of the U.S. military to try such cases. In a brief order, a three-judge panel of the Circuit Court denied the emergency motion for a stay of military commission proceedings against Omar Ahmed Khadr, finding that he “had not satisfied the stringent standards required for a stay pending court review.” (Khadr v. U.S., Circuit docket 07-1405)

Khadr’s trial is scheduled to start on Thursday, at least for a pre-trial hearing on whether the commission has the authority to go ahead with his trial itself on war crimes charges. Khadr, however, still has a postponement request pending in U.S. District Court, before U.S. District Judge John D. Bates (O.K. v. Bush, District Court docket 04-1136).  That request seeks to block the trial until after the Supreme Court rules on pending cases on the legal rights of Guantanamo detainees. Judge Bates had taken no action on that request by mid-afternoon Tuesday.  The Justice Department opposed that plea, as well as the stay motion in the Circuit Court; on Tuesday, the Department informed Judge Bates of the Circuit Court’s denial of a stay, saying it supported the government’s opposition to any court-ordered delay.

Khadr is charged with murder of a U.S. serviceman in Afghanistan, attempted murder, and providing support to terrorists.  His trial before a commission has been stalled twice before by legal complications.  On Thursday, a military judge presiding over the commission that is scheduled to try Khadr is to hold a hearing on whether to designate the detainee as an “unlawful enemy combatant.” If the judge does so, that would give the commission jurisdiction to go ahead with the trial.

Khadr’s lawyers had sought delays both in the Circuit Court and in District Court, because they said the proceedings pending in the two are different. The Circuit Court case is a challenge to the authority of the military judge to weigh Khadr’s legal status, and to the authority of the U.S. Court of Military Commission Review to assign the judge that task.  The District Court case is a wider-ranging habeas challenge, both to Khadr’s detention and to the authority of the commission to try him under any circumstances, on the theory that the commission system is constitutionally flawed.

In arguing for a delay in Judge Bates’ Court, the detainee’s lawyers argued that the Supreme Court’s coming decision on whether Guantanamo detainees retain a constitutional right to challenge their detention through habeas petitions (the issue in Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) would directly affect whether Khadr could proceed with his habeas challenge to the commission system.  The Justice Department countered that the Supreme Court cases do not involve any issue involving the military commission, and further that Congress in 2006 had explicitly taken away federal courts’ authority to rule on any habeas claims against the commission system.

The Supreme Court’s agreement to rule on the legal rights of detainees — a decision that will not come for several months — continues to have a significant impact on Guantanamo Bay prisoners’ cases in lower courts.  It now appears that any change in the legal circumstance of a detainee is likely to be put on hold until after the Supreme Court rules.  That would include government attempts to get habeas challenges dismissed, to scuttle court orders that assure detainees’ access to their American lawyers, to wipe out court orders that require advance notice to attorneys before a detainee is transferred out of Guantanamo, to plan a specific transfer out of the military prison in Cuba, and — now — to go forward with a planned transfer of a detainee to another country.   One or more District judges in Washington, D.C., have thwarted each of those maneuvers, relying mainly upon the Supreme Court order to hear the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).

The latest of these government efforts, a decision by the Defense and State Departments to send a Tunisian national now at Guantanamo to his home country, where he faces a prison sentence of 20 years for alleged terrorist activity and where he also claims he will face torture,  was blocked on Oct. 2 by U.S. District Judge Gladys Kessler in Washington, D.C.  (Originally issued under seal, her order was made public on Tuesday.)  The case involves Mohammed Rahman, a habeas petitioner in District Court case 05-359 (Alhami, et al., v. Bush).  The judge’s order can be found here.

This decision was not a surprise, since Judge Kessler on the same day that she wrote the sealed order involving Rahman also issued a public order requiring the government to provide 30 days’ advance notice before the U.S. military transferred Haji Rohullah from a detention facility at Bagram Air Forc e Base in Afghanistan to an Afghani prison.

In both the Rohullah and Rahman cases, the judge used the same rationale: the detainees would likely suffer harm if moved as the U.S. military planned, and also that the Supreme Court’s agreement to hear Boumediene and Al Odah cast a “deep shadow of uncertainty” over a D.C. Circuit Court ruling that detainees held by the U.S. military in the “war on terrorism” simply have no constitutional rights, and no right to pursue habeas challenges to their captivity.

The government, in each one of its gestures to keep control over the fate of detainees, has argued that the Circuit Court’s ruling — the one the Supreme Court will be reviewing — was still binding law in Washington, D.C., federal courts, so judges could not provide even interim legal relief for detainees in habeas cases.  But Judge Kessler, like other judges in Washington, noted that the Circuit Court has withdrawn its mandate in the key case, and the Supreme Court, in a “highly unusual” action, has granted review of the case after previously declining review.

As Judge Kessler concluded in the Rahman order, “it is imperative that the [District] Court protect its jurisdiction until the Supreme Court issues a  definitive ruling in Boumediene.”  The coming decision by the Justices, she wrote, “is likely to directly affect the outcome of the instant case.”

Six Washington, D.C., residents on Thursday urged the Supreme Court to step in now to define the nature of the right to “keep and bear arms” under the Constitution’s Second Amendment — in short, to decide whether it assures a private, personal right to have guns in one’s home. The brief suggested a different version of the issue at stake than had been posed by the District of Columbia government in its appeal in District of Columbia v. Heller (07-290). The brief in response can be found here.

The brief on behalf of Dick Anthony Heller and five other Washingtonians said they welcome the city government’s “effort to have this Court review the nature of Second Amendment rights. This case presents the Court a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The people’ — individuals in our country — retain the right to keep and bear arms. This case raises a profound constitutional law question in the context of a stark split of authority among the lower federal courts and state courts of last resort.”

When the city filed its appeal last month, here is the question it raised: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” The residents’ brief, however, said the Court should rewrite the question it will review to read: “Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.”

Attorneys for the gun rights advocates suggested that the District’s version of the issue was “tendentious” because “the question in this case is not merely whether the city may ban handguns as a subclass of firearm; the question is whether a law that prevents people from keeping functional firearms — of any kind — in their homes violates the ‘right to keep and bear arms’ recognized by the Second Amendment.”

The residents’ preferred question, the brief said, “fairly and accurately reflects all the laws adjudicated by the courts below….The code provisions at issue amount to a complete prohibition of the possession of all functional firearms within the home. The challenged laws are thus an absolute negation of the people’s right to keep arms. If the right exists, the laws must yield.”

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This is the third post previewing petitions for certiorari to be considered at the Justices’ Long Conference on Monday, September 24. Each was also listed in the Petitions to Watch post here. The preview of Gilles v. Blanchard (06-1617) is here, and the preview of Catholic Charities v. Dinallo (06-1550) is here.

This post will examine Koutnik v. Brown, et al. (06-1171), a case involving the censorship of a prisoner’s outgoing mail. The petition, brief in opposition (BIO), and reply for Koutnik are respectively available here, here, and here.

The petition presents two questions: first, what the correct First Amendment standard of review is when applied to censorship of prisoner mail; and second, whether censorship by prison officials on general rehabilitative grounds violates the First Amendment.

Joseph D. Koutnik, as an inmate at the Wisconsin Secure Program Facility, attempted to send a letter and some drawings from prison in December 2002. The mail was addressed to Northern Sun Merchandising, a retail catalog selling items like T-shirts and posters featuring political messages. In his cover letter, Koutnik noted that prison reform messages were not well-represented among Northern Sun’s products, so he urged the company to use some of his ideas. As the petition describes it, “[o]ne of Mr. Koutnik’s drawings was a cartoon swastika filled with prison bars, with the captions, ‘Department of Corruptions’ and ‘Keeping Kids in Kages.’” The respondents emphasize that the caption to the swastika included three “prominent, stylized” Ks, a reference to the Ku Klux Klan. The BIO also points out that Koutnik’s letter expressed a wish for Northern Sun to market prison reform-themed products to inmates.

Prison officers confiscated and destroyed Koutnik’s mail and notified him as such. The BIO explains that seizing Koutnik’s mail was “related to the penological goal of rehabilitation” because the prison needed to encourage Koutnik to “live crime-free upon release[,] … to develop the ability to solve conflicts without resorting to violence[, and] to recognize that successful integration into society requires respecting the rights of others.”

Koutnik brought a pro se suit alleging breaches of his First and Fourteenth Amendment rights. He claimed that the swastika drawing was a political statement comparing the prison system to Nazi concentration camps. He also denied that he was promoting white supremacist views, and that “as a person of Slavic descent, he abhors Nazis,” according to the petition. The BIO counters that Koutnik is a member of the Simon City Royals, a “usually white” gang. The District Court for the Western District of Wisconsin granted summary judgment in favor of the prison officials, and in August 2006, the Court of Appeals for the Seventh Circuit affirmed. Koutnik then obtained pro bono representation to petition for rehearing and now for certiorari.

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For three decades, the Supreme Court has permitted the death penalty only for the crime of murder. On Tuesday, a Louisiana man under death sentence filed a new appeal asking the Court to maintain that limit, barring his execution for the crime of rape of a child. The Louisiana Supreme Court, however, ruled on May 22 that the Supreme Court’s 1977 decision barring capital punishment for rape (Coker v. Georgia) does not apply when the victim is a child under age 12.

UPDATE: The petition has been docketed as 07-343.
The petition in Kennedy v. Louisiana can be downloaded here. The lengthy opinion of the state Supreme Court can be found in the petition’s appendix here.

The case could provide the first opportunity for the Court under Chief Justice John G. Roberts, Jr., to indicate whether it will continue to interpret the constitutionality of death penalty laws in the U.S. partly on the basis of what other countries do on the question. In the Court’s most recent rulings against application of the death penalty, barring it for juveniles and for mentally retarded individuals, it relied in part upon international as well as national trends. According to Amnesty International, more than half the nations that still have the death penalty do not impose it for child rape. (Inside the U.S., five states including Louisiana allow the penalty for child rape; the Kennedy petition says that prosecutors in the other states refuse to seek it.)

Patrick Kennedy, a 43-year-old black man from suburban New Orleans, has been sentenced to death after being convicted of raping his eight-year-old stepdaughter, identified in court papers only as “L.H.” He has contended since the assault occurred in March 1998 that it was committed by two neighborhood boys. His attorneys have said he refused to plead guilty when a deal was offered to spare him from a death sentence.

His petition says that he “is the only person in the United States who is on death row for a non-homicide offense. He has been sentenced to die for the crime of rape — an offense for which no person has been executed in this country for over forty years” — since Missouri executed Ronald Wolfe in 1964.

His lawyers posed two questions:
“1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
“2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.”

Louisisna’s legislature made aggravated rape a capital crime in 1995, when the victim was under 12 years of age. That is the way the law stood when Kennedy received a death sentence. In 2003, the state legislature changed the law to make that punishment available when the victim was under 13.

The Supreme Court, on June 2, 1997, refused to hear a pre-enforcement challenge to the Louisiana law. Three justices said in a separate statement that review of that case may have been barred for jurisdictional reasons, because the individual involved, Patrick DeWayne Bethley, had not been convicted of any crime, nor sentenced. (The Court’s order and the separate opinion in Bethley v. Louisiana, docket 96-8334, can be found here.)

The new appeal argues that the Louisiana Supreme Court decision upholding the child rape sentencing law “flouts the overwhelming national consensus that capital punishment is an inappropriate penalty for any kind of rape.” The Kennedy case, it adds, “stands in the ideal procedural posture for this Court’s review and actually highlights the distressing realities attendant to extending the death penalty into the realm of child rape. There would be no benefit from further percolation” on the issue in lower courts.

Five residents of Washington, D.C., who challenged their city’s strict ban on handguns told the Supreme Court on Monday that they support review of the constitutionality of that ban, but also asked the Court to rule on their right to challenge criminal laws enforced by the city. In a cross-petition, Parker, et al., v. District of Columbia, et al., the five individuals argued that they had been wrongly excluded from the gun lawsuit because of flawed precedents on who may sue in federal courts in D.C. (Click here to read the petition and appendix in Parker, et al., v. District of Columbia, et al. A docket number has not yet been assigned.)(UPDATE: The petition has been docketed as 07-335.)

Last week, D.C. officials appealed to the Court (District of Columbia v. Heller, docket 07-290), seeking to revive the local handgun control law that has been struck down by the D.C. Circuit Court based on the Constitution’s Second Amendment. Those who successfully challenged the law have until Oct. 5 to formally respond to that appeal, but their lawyers have indicated they will do so earlier than that.

The new petition was filed by Shelly Parker, Tom G. Palmer, Gillian St. Lawrence, Tracey Ambeau and George Lyon. They all live in Washington, and were part of the lawsuit that succeeded in nullifying the handgun ban. But the D.C. Circuit found that none of those five had “standing” to be in the case. (The Circuit Court found one D.C. resident, Dick Anthony Heller, did have standing, so proceeded to decide the case.)

The other five could not sue, the Circuit Court found, because they had not been “singled out or uniquely targeted by the D.C. government for prosecution.” Even though local officials had said repeatedly they would enforce the handgun ban, those statements were not directed against these five particular individuals, the Circuit Court said. (It found Heller had standing to sue, because he had sought a license to have a handgun, and had been refused.)

This exclusion of the five other residents, their new appeal argued, follows several precedents of the D.C. Circuit – in conflict with other appeals courts and with the Supreme Court – that will only allow individuals to sue to challenge laws that have not yet been enforced only if they can show a specific threat that they, as individuals, will be prosecuted under such laws.

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On Friday, we filed a cert. petition in Greenlaw v. United States, a case out of the Eighth Circuit. The petition raises the question whether a court of appeals may order an increase in a criminal defendant’s sentence sua sponte, absent an appeal or cross-appeal by the Government. Now-former Stanford student Lindsey Powell worked on the case with us over the summer.

UPDATE Saturday a.m. The Justice Department, in added materials filed with the rehearing petition on Friday, asked the Circuit Court to allow only the judges — not their law clerks, and not the detainees’ lawyers — to see or use two secret versions of declarations by the heads of the CIA and the NSA. The motion to restrict access to those items can be found here. The Department also filed a motion to expedite the Circuit Court’s consideration of its rehearing petition; that document can be found here.

The motion to expedite argued that fast action by the Circuit Court on the rehearing plea could enable the Supreme Court to have the benefit of the Circuit Court’s views on officials’ document-filing duties as the Justices consider the pending detainee cases (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). If the Circuit Court were to deny rehearing, the Department said, the government would then have the option of appealing the Bismullah/Parhat case to the Supreme Court during the current Term. The question of how much information the government must turn over to the Circuit Court and to detainees’ lawyers is “an exceptionally important threshold question” as the Circuit judges weigh enemy combatant rulings, the motion siad..

Analysis

With a full rank of the Nation’s top intelligence officers warning that they will have to sacrifice some of their efforts in wagng war on global terrorism if they must obey a court ruling in the Guantanamo detainee cases, the Justice Department on Friday asked the full ten-judge D.C. Circuit Court to reconsider a three-judge panel ruling on the scope of judicial review of some 130 detainee lawsuits. The petition and accompanying declarations by five high-level officials amount, first, to a wide-ranging challenge to the Circuit Court — almost to the point of accusing it of endangering national security, and, second, to an energetic new attempt to sharply narrow any civilian court review of detainee challenges to their continued confinement.

The petition for rehearing en banc was filed in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), in which the Circuit Court laid down the basic procedural rules for its congressionally-assigned review of “enemy combatant” rulings for Guantanamo Bay detainees. Those rulings are made by Pentagon panels named Combatant Status Review Tribunals; a finding that a detainee remains a combatant results in continued detention.

It will take the votes of a majority of the 10 active Circuit judges to grant reconsideration.

To read the rehearing petition, click here. To read the original July 20 panel opinion by the Circuit Court, click here.

A declaration of Michael V. Hayden, director of the Central Intelligence Agency, is here, one by Robert Mueller, director of the Federal Bureau of Investigation, is here, one by Keith B. Alexander, director of the National Security Agency, is here, one by J. Michael McConnell, National Intelligence director, is here, and one by Deputy Secretary of Defense Gordon R. England, Deputy Secretary of Defense, is here. A final added document, Pentagon regulations on reviewing detainee evidence, is here. In addition to the public versions of the officials’ statements, classified versions with more secret materials were submitted to the Court.

As Justice Department and other government officials read the Circuit Court’s ruling in Bismullah/Parhat, it would compel a government-wide search to find and then share with the Court and with detainees lawyers any kind of information — highly sensitive or otherwise — that might bear upon each individual’s status as an “enemy combatant” even if some or even a great deal of the information casts no doubt on the validity of designating an individual as a combatant. That, the Department’s petition argued, goes far beyond what Congress meant in 2005 when it passed the Detainee Treatment Act, assigning to the Circuit Court the exclusive role in hearing detainees’ legal complaints about the status findings by CSRTs.

DTA was passed as a substitute for habeas corpus challenges by detainees; Congress had moved to wipe out all such habeas cases. The Department argued Friday that “It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review far more extensive than anhy production requirement found in habeas.”

The Circuit Court on July 20 rejected the government argument that all it had to produce, in any individual detainee challenge to a combatant designation, was the actual record that a CSRT had considered. Going considerably beyond that, the Circuit Court ordered the government to produce all government information about each detainee who files a DTA challenge. The ruling, though, allowed the government to withhold from the other side’s lawyers sensitivie classified information.

Friday’s filings argued, however, that even filing some of the information under tight security wraps would pose heavy risks to national security, because it would compromise promises of confidentiality to other countries and to human intelligence sources who had supplied some of the information.

CIA Director Hayden’s separate declaration argued: “The breadth of discovery apparently required by the Court’s decision will include information about virtually every weapon in the CIA’s arsenal to combat the terrorist threat to the United States.” Deputy Defense Secretary England contended that the Circuit Court ruling’s command to produce all the government information “will require DoD to pull resources away from the warfighting and intelligence gathering missions that are essential to fighting the Global War on Terrorism. We cannot overstate the importance of ensuring that our components can focus on their primary missions.”

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This is the first in a series of posts previewing petitions for certiorari to be considered at the Justices’ Long Conference on September 24. Each will also be listed in the Petitions to Watch post before that conference.

In this post, we’ll look at Gilles v. Blanchard, et al. (06-1617), a case involving religious speech on a public university campus. The petition, brief in opposition (BIO), and reply for Gilles are respectively available here, here, and here.

The petition presents two questions: first, whether an open area on a public university’s campus should be considered a public forum for speech purposes; and second, whether campus officials can exercise “unbridled discretion” in regulating speech on public university property, even if the speech occurs in a nonpublic forum.

Since the early 1980s, James Gilles, a preacher informally known as “Brother Jim,” has spoken and distributed Christian literature on hundreds of college campuses around the country. According to Gilles’s petition, he visited Vincennes University, a public university in Indiana, in August 2002 in an attempt to discuss “faith and other moral issues of the day” in “an open and accessible part of the campus resembling a sidewalk and public park.”

A campus security officer stopped Gilles’ presentation and informed him that he would have to submit a “Request for Solicitation Approval” form to the dean of students. The dean deemed Gilles’s speech solicitation, meaning that Gilles could only speak in the area designated on campus for solicitation: a brick walkway in front of the student union “adjacent to a public street at a three-way intersection,” according to the petition. Due to noise and little student traffic in the designated area, Gilles ultimately decided to leave the campus. He brought suit in mid-2004. The district court granted the university’s motion for summary judgment, and the Seventh Circuit affirmed in February.

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The Solicitor General’s office asked the Supreme Court on Wednesday not to review the suit of a German citizen alleged to have been mistakenly abducted and sent to a secret prison in Afghanistan as part of the Central Intelligence Agency’s “extraordinary rendition” program. The government’s brief (here), obtained Thursday afternoon, argues the district court and Fourth Circuit properly dismissed the complaint at the pleadings stage under the so-called “state secrets privilege,” which allows the government to seek the exclusion of evidence officials assert could jeopardize national security.

The government said that while it could not publicly discuss the significance of the secret evidence at issue in its public brief, officials would make a classified declaration available to the Justices upon request under “appropriate security measures.” Also on Wednesday, the Justices received amicus briefs in support of the petitioner from the Constitution Project (here) and the New York City Bar Association (here).

Lawyers for the American Civil Liberties Union filed the petition in May on behalf of Khaled El-Masri, a German citizen born to Lebanese parents. According to the petition in El-Masri v. United States (06-1613) (here), officials at the Macedonian border detained El-Masri in the final days of 2003 as he attempted to enter the country by bus. After being interrogated at a hotel for more than three weeks, El-Masri was turned over U.S. agents and flown to a CIA prison in Afghanistan known as the “Salt Pit,” his lawyers say. Agents at the prison repeatedly beat and interrogated El-Masri, according to the petition, until officials realized he was not the Al Qaeda suspect they had originally believed.

In late 2004, El-Masri brought suit against former CIA Director George Tenet in the Eastern District of Virginia, as well as three corporations and unnamed agents allegedly involved in his abduction. The U.S. government intervened to dismiss the case, saying the disclosure of state secrets would inevitably be required during the course of litigation. Both the district court and a Fourth Circuit panel ruled for the government after reviewing a classified declaration from then-CIA Director Porter Goss. Publicly, the government has said it “can neither confirm nor deny” El-Masri’s accusations.

In the petition for certiorari, El-Masri’s lawyers argued that the privilege had “become unmoored from its evidentiary origins” – invoked not against specific pieces of evidence but to prevent suits from even reaching discovery. In Wednesday’s response, the government argued that “[t]here is no logical basis for petitioner’s assertion that cases may not be dismissed before discovery even if it is evident at the outset that they could not proceed to judgment without recourse to state secrets.” The brief continued, “[s]uch litigation not only would be pointless, but would threaten the disclosure of the very privileged information that the state secrets privilege is designed to protect.”

Citing a forthcoming article in the George Washington Law Review, the government’s brief says courts dismissed nearly two dozen complaints at the pleading stage between 1973 and 2000 under the state secrets privilege. Also according to the article, authored by Professor Robert M. Chesney, “[t]he available data do … not support the conclusion that the Bush administration chooses to resort to the privilege with greater frequency than prior administrations or in unprecedented substantive contexts.”

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UPDATE Wednesday p.m.
The Court has now docketed District of Columbia v. Heller as 07-290.

Analysis

(The petition can be downloaded here, and the appendix is here. It will be assigned a docket number shortly. A news release discussing the filing can be found here.)

Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples’ lives in the Nation’s capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city’s gun control law from nullification under the Second Amendment. “Having a handgun, whether in the home or outside it, comes at the expense of the safety of those who may be victims,” the petition for review argued. “Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.”

The local residents who successfully challenged the local handgun law have already said they will join in urging the Supreme Court to hear and decide the case. The case is being filed early enough that, if granted, it could be decided in the current Term. Absent extensions of time, briefing on the issue of granting or denying review could be completed by mid-October.

UPDATE 11:50 a.m. Five of the six D.C. residents who filed the original challenge, and whose “standing” to sue was denied by the D.C. Circuit Court, plan to file a cross-appeal to the Supreme Court later this week, seeking to revive their right to have brought the case, according to one of their counsel, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute. One of the six, Dick Anthony Heller, was found to have “standing.”

Tuesday’s appeal in District of Columbia v. Heller challenges a March 9 ruling by the D.C. Circuit Court, striking down the Washington, D.C., law adopted in 1976 that generally bars the registration of any handgun. Thus, the law does not allow anyone to possess a handgun for private, personal use, in any setting, including a private home. Although the Circuit Court’s 2-1 ruling suggested that the District might be able to adopt some “reasonable” form of gun control, the sweeping language of the opinion appeared to mean that the Second Amendment would stand in the way of any regulation of any weapon that qualifies as a firearm. The Amendment’s “right to keep and bear arms” protects a right to have a gun in one’s own home for personal use, the Circuit majority ruled.

The petition raises a single question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.”

Worded that way, the question appears to offer the Justices an option of deciding the case on narrow grounds, limited to the urban setting of a single city with a history of handgun-related violence, with citizens still able to have some other kinds of guns for self-defense in case of need.

But the reasoning spread through the petition would also seem to offer the Court a chance, if it wished to take it, to speak broadly on the meaning of the Second Amendment — including defining the scope of the Amendment’s restriction on actions by Congress and what that means to states’ power to enact gun control laws or protect gun owners’ rights without federal interference. The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns. The petition suggests an interpretation that would have the Second Amendment insulate the states from congressional second-guessing about gun rights that the states choose to recognize or to limit.

The Supreme Court has not ruled on the scope of the Second Amendment in 68 years — not since U.S. v. Miller in 1939.

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Lawyers for detainees at Guantanamo Bay filed merits briefs today in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196).

The brief in Boumediene is here, and click here and here to read the petitioners’ briefs in Al Odah. The Justice Department’s briefs in both cases are due October 9.

One amicus brief filed today in support of the petitioners came from Salim Hamdan, available here. The Court has yet to take action on his two pending appeals, 06-1169 (rehearing petition) and 07-15 (cert before judgment).

At least 20 other amicus briefs were filed in support of the petitioners, with still another filed in support of reversal. They are listed and linked after the jump. See Marty’s post below for his inital reaction to one of the amicus filings.

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UPDATED Friday AM with brief of American Bankers Assoc.

Yesterday, we posted this entry about the Solicitor General’s amicus brief supporting an affirmance of the decision below in Stoneridge v. Scientific-Atlanta; in that post, we also linked to the parties’ merits briefs.

For those interested, the complete set of bottom-side amicus briefs, filed yesterday, can now be found after the jump.

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UPDATED 8/15, 10:20 PM: Added both sides’ merits briefs (at bottom of post, after jump).

Switching sides in a major fight over securities law, the Bush Administration on Wednesday told the Supreme Court that the government generally opposes liability for third parties in fraud lawsuits if there is no proof that they directly deceived investors who were counting on them for solid information. The liability issue involves entities such as investment bankers who act as business partners to a firm that directly engages in deception or manipulation of securities. The brief by U.S. Solicitor General Paul D. Clement can be downloaded here. The government thus abandoned a substantial part of a position it had held in prior cases in support of investors; the brief also contradicted the majority of the present members of the Securities and Exchange Commission, and the chairmen of leading financial and other committees in Congress. Clement resisted a strenuous lobbying effort by lawmakers to stay on the sidelines if he could not suppot investors.

The brief that finally emerged from weeks of maneuvering and lobbying had some of the characteristics of a compromise, but ultimately employed language that suggested that third-party liability should be difficult to prove, absent clear evidence of reliance by investors on any misconduct by such other parties.

Filed in Stoneridge Investment v. Scientific-Atlanta (06-43), a case scheduled for oral argument on Oct. 9 in the new Term, the brief urged the Court to uphold a ruling by the Eighth Circuit Court that broadly insulated third parties from liability for securities deception or manipulation. Clement, however, argued that the Eighth Circuit had gone too far in its curb on third party liability. The decision nevertheless should be upheld, the Solicitor General argued, because there was no proof that any deception in the Stoneridge case by third parties was relied upon by investors. The Circuit Court was wrong, the brief said, in concluding that a third party that had some role in a deceptive scheme can never be held liable for someone else’s fraud if the third party did not make a misstatement or an omission that it had a duty to disclose or did not direclty engage in manipulating trading. Deception can occur by means short of that, the brief said.

The dispute turns, at least in part, on the meaning of a 1994 Supreme Court ruling, in Central Bank v. First Interstate Bank; there, the Court barred private securities fraud claims based on assertions of aiding and abetting fraud by others. Making third parties liable for a role in someone else’s fraud, absent proof that investors relied on third party conduct, the Solicitor General contended, would be “the functional equivalent” of aider-abbettor liability in suits filed by private investors.

Seeking to build on the 1994 precedent, Clement’s new brief argued that “it would greatly expand the inferred private right of action under Section 10(b) and Rule 10b-5 if ’secondary actors’ could be held primarily liable whenever they engage in allegedly deceptive conduct, even if investors do not rely on (and are not even aware of) that conduct. Such a rule would expose not only accountants and lawyers who advise issuers of securities, but also vendors (such as respondents) and other firms that simply do business with issuers, to potentially billions of dollars in liability when those issuers make misrepresentations to the market. Such a rule would thereby considerably widen the pool of deep-pocketed defendants that could be sued for the misrepresentations of issuers, increasing the likelihood that the private right of action will be ‘employed abusively to impose substantial costs on companies and indviiduals whose conduct confirms to the law.’ ”

Although Clement refused to put the current SEC majority’s opposing view before the Court, as the commissioners had asked him to do, their views have been offered to the Court in filings by members of Congress, who have asked permission to join in the Stoneridge case.

The filing of the brief ended weeks of public and private dispute over what role, if any, the government would be playing in the Stoneridge case, and in another case, raising the same issue, that the Supreme Court has yet to act upon — the case of California Regents v. Merrill Lynch, et al. (docket 06-1341), which involves billions of dollars in potential liabilty for major investment banking houses in a part of the Enron scandal. The Fifth Circuit, like the Eighth, rejected “scheme liability” for third parties. Clement had declined in June when asked by the SEC to file a brief supporting Stoneridge. Since then, the lingering question was whether the government would stay out of the case entirely, or side with third parties — as President Bush and Treasury Secretary Henry Paulson have been pressing Clement to do.

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UPDATE 2:40 p.m.
Supreme Court Justice John Paul Stevens on Wednesday denied, without opinion, an application by Pfizer, Inc., to stay and recall the mandate of the Federal Circuit Court’s March 22 decision nullifying patent claims on a Pfizer high blood pressure drug. The order by Stevens allows makers of generic products to continue marketing substitutes for Pfizer’s Norvasc.

A U.S. company that makes and sells cheaper generic versions of brand-name drugs urged a Supreme Court Justice on Tuesday to allow it to continue marketing a generic medicine for easing high blood pressure. Apotex Corp. said it would be hurt far more than Pfizer Inc., the brand-name medicine’s manufacturer, if Justice John Paul Stevens acts to stall a lower court ruling in Apotex’s favor. The Federal Circuit Court on March 22 struck down three claims on Pfizer’s patent for its widely used Norvasc blood pressure drug. Pfizer has asked Stevens to block that ruling temporarily.

Pfizer’s Norvasc patent actually expired on March 25, but it went to Justice Stevens in hopes of protecting its right to be the exclusive source of the medicine during a special six-month extension of its patent monopoly through Sept. 25. Apotex has been marketing its generic version since May 24, relying upon the Federal Circuit ruling that the Pfizer patent claims were invalid because their development was “obvious.” That continued competition is what Pfizer sought to interrupt with its stay application (Pfizer v. Apotex, 06A1131).

Apotex filed its answer (download here) at Stevens’ request. On Wednesday, Pfizer filed this reply. Pfizer also has a motion pending before the full Court to act swiftly on its petition challenging the Federal Circuit decision. Pfizer wants the case sent back to the Circuit Court for another look. The Court is expected to consider that separate request quickly, perhaps at its private Conference this Thursday.

In Apotex’s response, the company contended that Pfizer may lose some profits if Apotex continues in the market, but that Pfizer could later make a claim for damages if its patent should later be upheld. “Absent a showing that the court of appeals could not fashion effective relief should that court ultimately rule in favor of Pfizer, it has no right to a stay because Pfizer’s injury is not irreparable.” In any event, Apotex said, Pfizer’s estimate that it would lose some $600 million in revenue over the next four months was “overstated” because Pfizer would go on facing competition from the marketing of another generic by Mylan Laboratories.

By contrast, Apotex said, a delay in its victory on the patent’s invalidity would result in losses that it would have no way ever of recovering, if that victory should ultimately stand. Its costs, it said, would include what it spent to put its generic medicine on the market, the cost of stopping sales, and the loss of profits from marketing its drug. “The stay could be expected to last for most if not all of the remaining period” of Pfizer’s patent extension, Apotex argued. Come late September, the case would become moot, and Apotex would have no remedy at all, it said.

Pfizer, in seeking a stay and a recall of the Federal Circuit ruling against it and in its petition challenging that decision, wants the Supreme Court to return the case to that appeals court to reconsider in light of the Justices’ ruling in KSR International v. Teleflex on April 30, ordering the Circuit Court to take a more flexible view of when an invention is “obvious.”

Apotex contended on Tuesday that the KSR ruling already has been brought to the attention of the Federal Circuit, so it considered it in the Pfizer case before putting that ruling into effect. Moreover, Apotex contended, KSR would not require a change in the Circuit Court’s ruling against the Pfizer patent.

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The SG’s invitation brief in No. 06-273, Cox v. DaimlerChrysler Corp., is in (it can be downloaded here), and – as in No. 05-10787, Murphy v. Oklahoma (which has been distributed for conference on May 31), the only other invitation brief filed recently – the federal government is recommending that cert. be denied.

As I noted in an earlier post, the question presented in Cox is whether ERISA’s anti-alienation provision prohibits the state of Michigan from directing a pension plan to deposit pension benefits owed to a state inmate into the inmate’s prison bank account, from which the state can then recover funds to pay for costs associated with the inmate’s incarceration. In contending that cert. is not warranted, the United States emphasizes first that the Sixth Circuit’s decision is correct: the notices sent by the state to DaimlerChrysler, directing the pension plan to send the pension benefits to the prison account, constitute precisely the kind of alienation of benefits that ERISA precludes. Moreover, the United States explains, the Sixth Circuit’s decision does not conflict with the decision of any other court of appeals. The government distinguishes a Ninth Circuit decision, Wright v. Riveland, as presenting a different factual scenario and statutory scheme; in that case, the inmates challenged California’s deduction of funds from their prison accounts after the funds had been deposited. And although the government acknowledges that the Sixth Circuit’s decision is “in significant tension” with a Michigan Supreme Court decision, the Sixth Circuit in this case explicitly declined to decide the question before the Michigan court – viz., whether Michigan could compel the inmate to notify the pension plan of his change in address. In any event, the United States explains, review is not warranted for the further reason that the Michigan Supreme Court could, based on the federal government’s views as expressed in this case, reconsider its holding if faced with the same question in the future. Finally, the government concludes, allowing the Sixth Circuit’s decision to stand does not necessarily preclude the state from recovering the costs of incarceration from inmates, as the state could still access the benefit payments once the inmate receives them.

In the Federal Tort Claims Act, Congress waived the sovereign immunity of the United States (and thus created the possibility of damages) for the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” However, Congress has also carved out a variety of exceptions to this waiver of sovereign immunity, including (in 28 U.S.C. 2680(c)) one for claims “arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.”

In an IFP petition filed earlier this year, federal prisoner Abdus-Shahid M.S. Ali (represented by Jean-Claude Andre and Peter Stris) asks the Court to resolve a question regarding the scope of Section 2680(c) – notably, a question with regard to which ten courts of appeals appear intractably divided: whether Section 2680(c)’s exception to the waiver of sovereign immunity for the detention of goods by law enforcement officers includes detentions of property by prison officials or is instead limited to detentions of property by officers acting in an excise or customs capacity. Although the gaudy six-to-four split among the courts of appeals would be enough to make the case a serious candidate for Supreme Court review in any event, it became even more so last week, when the United States filed its brief in the case. Interestingly, although the U.S. did not oppose certiorari, it also did not expressly agree that certiorari should be granted. Instead, it advised the Court that while it “did not oppose this Court’s granting the petition . . . given the circuit conflict and given the court of appeals’ definitive rejection of petitioner’s FTCA claim,” “[t]he Court may prefer to await a case that does not arise in an interlocutory posture,” particularly given the frequency with which the question presented arises. Also interesting is that, although the brief notes that “Congress has amended Section 2680(c)’s ‘detention of goods’ exception in a manner that underscores the exception’s breadth,” the U.S. does not explicitly argue that the decision below should be affirmed.

The petition can be found here, the SG’s brief is here, and the reply is here. The case is scheduled to be considered by the Justices in their private conference on May 24.