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UPDATED: New review for Ashcroft

The Supreme Court, finishing its first sitting of the new Term, agreed on Monday to hear a single new case, a plea by former U.S. Attorney General John D. Ashcroft for immunity to a lawsuit claiming he misused a federal law to detain terrorism suspects without charging them with a crime.  The Court’s order marked the second time in the past two years that the Justices had stepped into a dispute centering on the Justice Department’s reaction to the “war on terrorism.”  The last time led to a victory for Ashcroft in a case that then ended in lower courts.

The Court limited its review of the new case (Ashcroft v. Al-Kidd, 10-98) to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal “material witness” law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim.  The Court did not grant review of a third issue, involving the former Justice Department chief’s liability for false statements by a federal agent — apparently because the challenger has dropped that claim.  Justice Elena Kagan did not take part in the Court’s action, presumably because she had some prior role in the case as U.S. Solicitor General.

When Ashcroft took an earlier appeal to the Court, Ashcroft v. Iqbal (07-1015), the issue was whether the former Attorney General and the director of the FBI could be held responsible for mistreatment of individuals rounded up in the immediate aftermath of the Sept. 11, 2001, terrorist attacks on New York City and the Pentagon in Washington.  In deciding that case on May 18 of last year, the Court made it more difficult to bring lawsuits against high-ranking officials, but did not throw out at that point the claims of Javaid Iqbal, one of the detainees.  The Justices returned the case to the Second Circuit Court for a new look, and that Court sent it back to U.S. District Court in Brooklyn to decide whether to allow Iqbal to try to come up with more specifics to support his claims.  The case, however, was settled last November, without a new ruling, and thus has come to an end.

The new case involves a specific claim that, under Ashcroft’s leadership, federal officials in 2003 arrested and held for 15 days a Nevada man, Abdullah Al-Kidd, by relying upon a federal witness-availability law: the so-called “material witness” statute.  It allows the temporary detention of an individual who is being held as a witness of someone else’s alleged crime, when officials suspect that the individual will not be available otherwise.  Al-Kidd’s lawsuit, which the Ninth Circuit Court cleared for trial, contended that the law was used unconstitutionally in the Justice Department to detain suspects that the government had insufficient evidence to arrest otherwise, to allow further investigation of a suspect.

Al-Kidd was taken into custody at an airport in the Washington, D.C., area when he was about to fly to Saudi Arabia.  Officials had obtained a warrant to arrest him on the theory that his testimony would be needed in an investigation the government was then conducting of another individual, a suspect with alleged links to a radical Islamic organization.  Al-Kidd was never called as a witness at the trial of that suspect, which ended in a not-guilty verdict for the other person.  After Al-Kidd was released, he sued the former Attorney General and other federal officials, seeking damages for violating the material-witness law and the Fourth Amendment.  The Ninth Circuit rejected Ashcroft’s claims to absolute immunity on the material witness issue, and to qualified immunity on the Fourth Amendment complaint.

While granting review of that case on Monday, the Court took a variety of other actions on new cases.  It issued a partial summary ruling in favor of the state of Montana in a running battle with the state of Wyoming over use of the waters of two tributaries of the Yellowstone River (137 Original).  The Court upheld, as a Special Master had recommended, Montana’s claim that the Yellowstone River Compact governing use of the waters of that river and tributaries applies to all waters of those tributaries, including those stored in reservoirs and not being used immediately.  The Court’s ruling on that point, however, involved a question that is no longer in dispute between the two states.  In another part of its order, the Court refused to resolve for now an even wider scope for the Yellowstone compact that Montana had claimed.  Later this Term, the Court will hold a hearing before deciding another issue in this river water rights dispute — that is, whether the state of Wyoming is violating the compact when its farmers and ranchers use more efficient irrigation methods that, in fact, reduce the amount of water that is returned to the rivers to flow downstream to Montana’s users..

Among the denials of review of new cases on Monday, the Court refused — for the fourth time in recent years — a challenge based on federal voting rights law to the denial of the right to vote to inmates while they are serving in prison.  This time, the Court denied review of Simmons v. Galvin (09-920).  The claim, made this time by Massachusetts inmates, is that, because the criminal justice system often results in discrimination against blacks, putting more of them in prison, a denial of voting rights for inmates violates the anti-discrimination provision of the federal Voting Rights Act’s Section 2.

Over the lone dissent of Justice Sonia Sotomayor, the Court refused to hear a Louisiana prison inmate’s claim that prison officials violated his constitutional right against cruel punishment by punishing him for failing to take his HIV medicine — a gesture the inmate made in protest over being transferred to a different facility.  Justice Sotomayor said in a four-page dissent from denial of review that the inmate, Anthony C. Pitre, has made out an Eighth Amendment claim.  The Court, in denying review, did not respond to the dissent in Pitre v. Cain, et al., 09-9515.

The Court, in another denial, refused dueling pleas to put an end to a nearly 14-year-old lawsuit involving claims of age bias in the workplace at New York facilities of the Knolls Atomic Power Laboratory, which does research and development on atomic power for U.S. Navy warships.  Without comment (but with Justice Sonia Sotomayor not taking part), the Court refused to hear Meacham, et al., v. Knolls Atomic Power Laboratory (09-1449) and KAPL Inc., v. Meacham, et al. (10-36).   The Court has dealt with the case twice before.

In the first of the new cases, the workers urged the Court to rule that the laboratory had waived its defense to a claim of workplace age bias, and thus a jury verdict awarding $4.2 million to the laid-off employees should be reinstated.  In the second case, the laboratory asked the Court to rule that the company had already successfully invoked that defense, so the verdict should be wiped out.  The Second Circuit Court, however, had ordered a new trial of the case, and that is the result the Supreme Court left intact on Monday.  The Second Circuit ruled that too much complexity had developed in the case to resolve it without a new trial.

The Court continued its recent pattern of refusing to reconsider its splintered 1981 ruling in Metromedia v. San Diego, on the constitutionality of city restrictions on outdoor advertising signs.  This time, the Court declined to hear a challenge to a New York City policy of sharply restricting off-premises signs even as it allowed a private company to put similar signs on bus transit shelters and newsstands.  The case was Metro Fuel LLC v. New York City (10-79).

And, as it has done several times, it refused again to provide new guidance to the states on how they are to determine whether a convicted individual is mentally retarded, and thus is inelible for the death penalty.  This time, they turned aside the appeal of Michael Wayne Hall, a Texas death-row inmate who at one point right after a murder had tested below 70 on an IQ test.  His new petition (Hall v. Thaler, 10-37) challenged the failure of the Texas legislature or the courts to spell out a retardation standard that takes into account professional clinical interpreteations of retardation.

The Court also reused to consider the constitutionality of New York City’s policy of requiring every police officer involved in a shooting that results in injury or death to take a breath test for drunkenness.  The issue was raised by the city’s police union, in Lynch, et al., v. New York City, et al. (10-97).

Recommended Citation: Lyle Denniston, UPDATED: New review for Ashcroft, SCOTUSblog (Oct. 18, 2010, 10:02 AM),