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Plain English: Last week’s grants

This morning, the Court’s new Term will officially begin:  the Justices will take the bench to hear oral arguments for the first time in several months.  For many court watchers, though, the new Term got off to its unofficial start last Tuesday, when the Court released its first set of orders from the private meeting of the Justices that occurred on Monday, September 26.

That Conference is often known as the “Long Conference” because the Justices are considering all of the requests for review that have been filed and briefed since the Justices’ last Conference at the end of June.  That’s a lot of cases – well over a thousand.  And because the Justices tend to grant more of these requests than they do at any other time of the year – last year, for example, they took a whopping fourteen new cases – the cases from the Long Conference usually give us a much better idea of what the new Term will look like.

There is always a lot of anticipation, and that was certainly true this year, with potential blockbusters involving (just to name a few) the Second Amendment, the Ten Commandments in the courtroom, corporate liability for human rights violations overseas, and royalties for music downloads over the Internet.

When the Court released the list of cases that it was granting on Tuesday morning, the results were, well, anticlimactic.  The Court granted review in only eight cases, significantly off of last year’s rate; moreover, none is likely to push health care out of the headlines.  That said, each of them is important to both the parties and their respective legal fields, so we will take a first look at them today in Plain English.

In Filarsky v. Delia, the Court will consider a variation on a doctrine that comes before it with some regularity:  qualified immunity.  Under the doctrine of qualified immunity, government employees can’t be sued for money damages for violating federal law unless their conduct violates “clearly established statutory or constitutional rights” and a “reasonable person” would have been aware of those rights.  This doctrine balances two competing interests:  on the one hand, we want government employees to be able to do their jobs without a constant fear of being sued for frivolous reasons.  On the other hand, we want to be able to hold them accountable for blatantly bad behavior.

In this case, a California firefighter named Nicholas Delia was put on medical leave by his doctor in 2006.  The city for which he worked then began an investigation to determine whether Delia was in fact unable to come to work, or whether he was instead on leave under false pretenses.  As part of the investigation, Delia met with a private lawyer hired by the city for an interview and was then ordered to go to his house and bring out some items for fire officials to inspect.  Delia did so, but he then filed a lawsuit, arguing that the city and government officials had violated his right to be free from unreasonable searches and seizures – a right that is protected by the Fourth Amendment and applies to state and local governments through the Fourteenth Amendment.

The lower court agreed that Delia’s constitutional rights had been violated, but it held that he couldn’t show that the right was “clearly established,” so the fire chiefs would not have known that they were violating the Fourth Amendment.  The question before the Court this Term is not whether the fire chiefs should have immunity, but instead whether the private attorney hired by the city to help with the investigation should also have qualified immunity.  Although at least one other court of appeals had held that a private attorney like Filarsky would have immunity – on the theory that an attorney who worked directly for the city and did the same things would be immune – the U.S. Court of Appeals for the Ninth Circuit, which decided this case, held that he would not.  Therefore, this case presents one of the most common scenarios in which the Supreme Court is likely to grant review:  a division among the federal courts of appeals, also known as circuits.

Although we often think of the Court as granting review to resolve grand constitutional questions (like health care) or disputes involving billions of dollars, the next case in which the Court granted review exemplifies the extent to which the Court’s docket also contains a steady diet of smaller-stakes cases requiring it to interpret obscure provisions of law.  Taniguchi v. Kan Pacific Corp. is a case filed by a Japanese professional baseball player, who was visiting a hotel in the Northern Mariana Islands when he fell through a wooden deck at the resort.  (According to Wikipedia, the Northern Mariana Islands are a “commonwealth in political union with the United States”; there are fifteen “islands located about three-quarters of the way from Hawaii to the Philippines.”  No, I didn’t know that either.)  Taniguchi sued the owner of the hotel, seeking to be compensated for the medical expenses he had to pay and for the income that he lost as a result of the accident.

As this case reaches the Court, the question is not whether the case was properly filed in the NMI, nor is it whether the hotel was responsible for Taniguchi’s injuries.  No, this case is about who – Taniguchi or the hotel – is going to pay the $5,517.20 that the hotel shelled out up front to translate documents from Japanese into English.  (That sum is almost certainly less than what Taniguchi and his lawyers will pay just to print their briefs for the Supreme Court, which just goes to show you that even in a case about the money, it’s not always about the money.)   The hotel won the case.  It then argued, and the U.S. Court of Appeals for the Ninth Circuit agreed, that it should be reimbursed for the translation costs because they were costs for the “compensation of interpreters” and therefore covered by a federal statute saying that those costs can be imposed on the losing party in a case.

With this decision, the Ninth Circuit reached the same result as six other courts of appeals, but another court had reached the opposite result:  that court, in an opinion by the well-respected Judge Richard Posner, reasoned that the word “interpreter” refers to someone who translates spoken language, rather than to someone who translates a written document like the ones at issue in this case.  Now the Supreme Court will resolve the question; we expect many dictionaries to be used in the process.

Although most of the attention in the field of immigration is focused on whether the Court will, later this Term, grant review of Arizona’s controversial immigration law, S.B. 1070, and weigh in on the role of the states in dealing with the problems created by illegal immigration, on Tuesday it granted review in the kind of immigration case that, at least so far, has dominated the Court’s docket:  cases interpreting various provisions of the complicated federal laws that govern when legal immigrants who run afoul of the law may be deported.

Two petitions – Holder v. Sawyers and Holder v. Gutierrez (which will be argued at the same time as one case) – arise out of the government’s efforts to deport the two “respondents” (the individuals who won in the lower court).  The first respondent, Carlos Gutierrez, came to the United States when he was five and became a lawful permanent resident (which, as the name suggests, allows him to stay in the United States as long as he doesn’t get into trouble with the law) when he was nineteen.  A few years after becoming a lawful permanent resident, however, Gutierrez was arrested for alien smuggling.   The second respondent, Damien Sawyers, came to this country at the age of fifteen as a lawful permanent resident and was twice convicted of state drug charges.

Although both men could be deported for their offenses, they tried to ward off that punishment under a provision of the immigration laws that gives the government the option to “cancel” (i.e., waive) deportation, if (among other things) the immigrant has lived continuously in the United States for at least seven years and has been a lawful permanent resident for at least five years.  Sawyers could not meet the first requirement, while Gutierrez could not meet either, but the Ninth Circuit (yes, it seems to handle a lot of cases that make their way to the Court) concluded that both men were still eligible to have their deportation “cancelled.”  It reasoned that even if they had not spent enough time in the country to qualify, at least one of their parents had, and they could rely on those years to meet the statute’s requirements.  The government filed a petition seeking review of that decision, which – not unexpectedly, given the government’s high rate of success when it decides to seek Supreme Court review – the Court granted last week.

A third immigration case granted on Tuesday, Vartelas v. Holder, also involves a lawful permanent resident who got into trouble with the law, this time by taking part in a scheme to sell fake travelers’ checks in 1994.  The real problems came in 2003, after he had served time in jail, when Vartelas tried to return to the United States after a brief trip to Greece.  Government officials argued that he should not be allowed to return because he had committed a crime involving “moral turpitude.”  Now the Court will consider a very technical question about whether an immigration law enacted in 1996 would apply to Vartelas, or whether he can instead rely on an older version of the law that would allow him to leave and come back without any risk.  This is known as a question of “retroactivity.”  The fact that the Court is still deciding who is subject to a law passed fifteen years ago shows that immigration law (like many other fields) remains confusing and unsettled.

United States v. Home Concrete & Supply, LLC is another example of the government’s high batting average in getting its petitions for review granted – sort of.  In this case, the government is challenging a lower court’s interpretation of the federal tax laws that would limit the time in which the government can assess an additional tax on a particular kind of tax shelter.  However, in its petition for review, the government actually urged the Court to grant a different pending petition that presented the same issue, Beard v. Commissioner.  We don’t know why the Court decided to take this case instead.  It has almost certainly decided to “hold” the Beard case – i.e., do nothing with it until it decides the Home Concrete case.

Just as the Court frequently winds up interpreting the nooks and crannies of immigration law, it also spends a good chunk of its time parsing another set of laws:  the federal habeas corpus laws, which allow prisoners who have been convicted in state and federal courts to institute a new federal proceeding to challenge the constitutionality of their convictions.  Over the years, Congress has passed a variety of laws that were intended to limit, for example, the time period in which a prisoner can challenge his conviction and the number of federal habeas challenges that he can bring, and these laws have generated a lot of work for the Court.

An example is another one of Tuesday’s granted cases, Wood v. Milyard, which was filed by Patrick Wood, who was convicted of murder in a Colorado court.  After failing to overturn his conviction on appeal, Wood went to federal court seeking habeas relief.  The federal trial court ruled against him, and he appealed.  The U.S. Court of Appeals for the Tenth Circuit ruled against him as well, but on different grounds:  It held that Wood had been too late to seek relief under the federal habeas laws.  What is noteworthy about the Tenth Circuit’s decision (and what Wood is challenging in the Supreme Court) is that the state had never argued that Wood had acted too late; when the issue did come, the state told the district court that it was “not challenging, but d[id] not concede,” whether Wood had gone to the federal district court on time.

Now the Court will weigh in on whether the Tenth Circuit was right to bring up the issue “sua sponte” – i.e., on its own.  Even if the Court rules for Wood, however, this case could in the end demonstrate another cold, hard reality of Supreme Court practice:  in many cases, winning the battle does not always win the war.  At most, Wood would win the right to go back and fight another day by asking the court of appeals to overturn the district court’s original decision in his case, because the question of whether his conviction was actually unconstitutional isn’t before the Court right now.

Finally, in Roberts v. Sea-Land Services, the Court will consider yet another case out of the Ninth Circuit requiring it to interpret a federal statute – this time, the Longshore and Harbor Workers’ Compensation Act, which provides compensation to maritime workers who are killed or injured in the line of duty.  Under the federal system, the most that an injured worker can receive is twice the “applicable national average weekly wage,” a figure that is calculated every year by the Department of Labor.  What the Court will now decide is which “average weekly wage” should be applied when – as in this case – a worker is injured during one year but gets a workers’ comp award during another one.  Although the question may come across as a technical one, it could have significant effects not only for Mr. Roberts – who would receive significantly more if his compensation is based on the rate in effect in 2007, when he got his award, rather than 2002, when he was injured – but also for other workers in the future.

Those are the cases granted so far from the Court’s Long Conference.  Most of the remaining petitions from that Conference will be denied in today’s Order List.  But others will be “relisted” for consideration on October 7.  I’ll discuss any of those that are granted in a later Plain English post.

Recommended Citation: Amy Howe, Plain English: Last week’s grants, SCOTUSblog (Oct. 3, 2011, 10:00 AM),