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.

Analysis

Five months and seven days after the Supreme Court’s path-breaking decision in Boumediene v. Bush — the most important so far of its four rulings on “war on terrorism” issues — a week that will test the scope and meaning of that ruling is about to open.  It will involve all three levels of the federal judiciary, winding up next Tuesday in the Supreme Court.

But as judges in all of those courts and teams of lawyers wrestle earnestly with basic questions about government powers and Guantanamo Bay detainees’ rights, a certain air of unreality will hang over all of the proceedings.  In 62 days, a new President will take over, having pledged to shut down Guantanamo altogether and to re-think the government’s entire policy of military detention and war crimes prosecution.

Judges and lawyers, however, have schedules to meet, and cannot wait to see what President-elect Barack Obama will do once in the White House.  So, starting Thursday, and in sequence, a Circuit Court panel will hold a crucial hearing on civilian courts’ powers in reviewing military detention decisions; a District judge will decide the first of the contested Guantanamo habeas cases — a reprise of the very same Boumediene case that went to the Supreme Court and returned; a  Circuit Court panel will hear government pleas to keep any detainees from being transferred to the U.S.; a District judge will try to sort out the links and conflicts between habeas, claims of torture and war crimes evidence, and the Supreme Court will get its first look at the first major sequel to Boumediene — a test of the President’s power to detain an individual who was lawfully in the U.S., was seized inside this country, and is now being held indefinitely and without charges in a military jail in South Carolina.

Each of those developments, in its own way, is a test of what the Supreme Court intended to happen when it ruled on June 12 that detainees have a constitutional right to bring habeas challenges to their confinement, while finding inadequate (but leaving intact) two other legal processes to weigh detention decisions by the military.

What follows below is a primer that simplifies and sorts out these developments, and shows how they mesh or clash.

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One of the more interesting orders on Monday’s order list came in No. 07-512, Pacific Bell v. linkLine Communications, which is set for oral argument on December 8.  On Monday the Court granted the Solicitor General’s motion for divided argument, which was hardly surprising (it would only be news if the Court denied such a motion from the SG).  More unexpected, however, was the next sentence:  “The motion of American Antitrust Institute for leave to participate in oral argument as amicus curiae and for divided argument is granted and the time is to be divided as follows:  15 minutes for respondents, and 15 minutes for amicus curiae American Antitrust Institute.”  Although motions like AAI’s are not uncommon, it’s fairly unusual for the Court to actually grant a private amicus argument time – much less more time than the ten minutes that AAI had requested.  So what gives? 

The answer can be found in AAI’s motion for divided argument.  AAI explains that although the question presented in linkLine is whether Section 2 of the Sherman Act permits a “price squeeze” claim when the defendant has no duty to deal, “respondents have essentially conceded the question and abandoned their price-squeeze claim.  They argue that the judgment below should be vacated and that they be permitted to amend their complaint to further develop their allegations that petitioners engaged in predatory pricing at the retail level.”  AAI contends that if the case is not dismissed as moot (a step that AAI had urged the Court to take in its amicus brief), it “should be permitted to participate in oral argument because . . . the judgment of the Ninth Circuit will be undefended.”   Such a result is particularly undesirable, AAI further explains, because the United States is likely to argue that “a price squeeze should be eliminated as an independent antitrust offense” – an issue that AAI “has vigorously contested . . . in its brief” but which respondents did not address.

More broadly, the disposition of AAI’s motion may serve as a useful practice pointer for other private amici seeking argument time.  Although this case may be an extreme example in that the respondents have conceded that the judgment below can be vacated, it demonstrates that the best chance for private amici to get argument time may lie in identifying a gap that, for whatever reason, would otherwise be left unaddressed at oral argument; offering a “unique perspective” (which works for the U.S. and, generally, the states) is usually not enough.

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.

(NOTE TO READERS: Because the court filings described here are expansive and detailed, the following is an entirely new report, rather than a revision or updating of an earlier post, which can be found below.)

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Arguing that it would “take months to fulfill” new duties imposed on the government in cases involving some 200 Guantanamo Bay detainees, and protesting orders to make “dramatic” new disclosures of government secrets, the Justice Department on Tuesday night urged a federal judge to cast aside major parts of a recent order laying out how those cases will be processed in court.

As an alternative — and apparently the preferred step — the Department suggested that the case be sent immediately to the D.C. Circuit Court to consider quickly the sweeping challenge.

If the 113 cases involving some 200 prisoners have to go forward first in District Court, the new filing said, that could produce an “entirely unwarranted” situation of reverses on appeal “months from now” and “only after volumes of classified information have been unnnecessarily disclosed.”

The multi-faceted attack on the system of District Court habeas review — being carried out under the Supreme Court’s ruling on detainees’ rights last June in Boumediene v. Bush — had a close parallel in the government’s attempts to pare down another form of civilian court review of detention decisions under the Detainee Treatment Act of 2005. The latter effort, however, has foundered, and now the government is seeking to shut down the DTA process altogether, leaving only the habeas cases.  (The new filing recycled some of the documents submitted to courts during the challenges to the DTA system.)

The Department suggested that the procedures laid out for the habeas cases conflict in “important respects” with the Supreme Court’s call in a 2004 detainee decision for a “prudent and incremental process,” quoting Hamdi v. Rumsfeld.

The new filing came in four parts: first, a motion to clarify and reconsider key parts of a Nov. 6 “case management order” issued by Senior District Judge Thomas F. Hogan or, in the alternative, a motion to send the case to the Circuit Court along with a delay of specific parts of the Hogan order, second, a set of proposed orders; third, a series of sworn statements by Pentagon and intelligence officials on the risks to national security; and, fourth, a sworn statement on national security risks by FBI Director Robert S. Mueller.  Also filed, but not made public, were secret statements from intelligence and military officials.

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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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