Abbott M. Jones

Christian & Small LLP

Birmingham, AL

As is customary, October Term 2010 ended in a flurry of opinions from the Court. Below is an update on Supreme Court related news, followed by snapshots of the remaining decisions issued this Term with links to the full opinions.

Supreme Court News

Term Statistics

The Court issued a total of 82 merits opinions this Term. Of those 82 cases, Justice Kagan was recused in 29. Justice Scalia authored the largest number of opinions with 28: 10 majority, 11 concurring, and 7 dissenting. Justice Kennedy authored the largest number of majority opinions (11) and Justice Breyer authored the largest number of dissenting opinions (9). Justice Thomas authored the most opinions (4) in cases that divided the Court 5-4.

In nearly two-thirds of all 5-4 decisions, Chief Justice Roberts along with Justices Scalia, Kennedy, Thomas, and Alito formed the majority. In one-fourth of those cases, Justice Kennedy joined the majority with Justices Ginsburg, Breyer, Sotomayor, and Kagan. The average number of days between oral argument and opinion was 98 days.

The Sixth Circuit, from which the Court heard 6 cases (7% of its docket), was reversed in 83% of cases. The First Circuit, from which the Court heard only 2 cases (2% of its docket), fared the best with a 100% affirmance rate.

News

On June 29, 2011, the Sixth Circuit became the first court of appeals to hear a challenge to the Patient Protection and Affordable Care Act (“PPACA”) ruled that the statute was constitutional. The appeal in that case was from the district court’s determination that the minimum coverage provisions, which require all applicable individuals to maintain minimum essential health insurance coverage or pay a penalty, of the PPACA were constitutionally sound. Specifically, the district court had determined that the minimum coverage provisions fell within Congress’s authority to act under the Commerce Clause. The Sixth Circuit agreed. The case is now before the Supreme Court on a petition for writ of certiorari.

In an opinion issued August 12, 2011, the Eleventh Circuit held that the individual mandate provision of the PPACA is unconstitutional, though it upheld other portions of the health care law. The question of the individual mandate’s constitutionality split the three-judge panel 2-1. In a 207-page majority opinion co-authored by Chief Judge Dubina and Judge Hull, the court held that the mandate overstepped Congress’s power under the Commerce Clause. Characterizing the mandate as a congressional attempt to require every individual “to enter into a compulsory contract with a private company,” the court determined that such a mandate was “a sharp departure from all prior exercises of federal power.” The federal government now has the option of seeking review of the decision by the full Eleventh Circuit and/or seeking the review of the Supreme Court.

The Fourth Circuit has held a hearing on the individual mandate, but it has yet to rule.

Supreme Court Case Update

First Amendment

In Arizona Free Enterprise v. Bennett/McComish v. Bennett, the Court held that a portion of Arizona’s campaign finance statute, specifically the provision that allowed matching of funds for publicly financed candidates for dollars raised and spent by privately funded candidates, substantially burdened political speech and was not justified by a compelling state interest.

In Brown v. Entertainment Merchants Association, the Court held that video games qualify for protection under the First Amendment and that a California statute imposing restrictions on the sale of video games to minors based upon the content of the games did not pass strict scrutiny. Justice Alito, who is quickly establishing his own brand of First Amendment jurisprudence, concurred in the judgment, but disagreed with the approach of the majority: “In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. . . . We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar.”

In Sorrell v. IMS Health, the Court held that Vermont’s Prescription Confidentiality Law—which, absent the prescriber’s consent, prohibits the sale of prescriber-identifying information and the disclosure or use of that information for marketing purposes—is subject to heightened judicial scrutiny because it imposes content- and speaker-based burdens on protected expression. Vermont’s justifications for the prohibitions did not withstand such heightened scrutiny.

In Borough of Duryea v. Guarnieri, the Court held that a government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public concern.

In Nevada Commission on Ethics v. Carrigan, the Court held that the Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad. The restriction on voting is constitutional, because the restriction does not affect any protected speech. Furthermore, the restriction on advocating for passage or failure, even if it involved protected speech, is a reasonable time, place, and manner limitation.

Personal Jurisdiction

In J. McIntyre Machinery v. Nicastro, the Court adopted Justice O’Connor’s so-called “stream of commerce plus” test for personal jurisdiction, as stated in her opinion in Asahi. The Court reiterated that courts may not exercise jurisdiction over a defendant that has not purposefully availed itself of doing business in the jurisdiction or placed goods in the stream of commerce in the expectation that they would be purchased in the jurisdiction. The Court noted that a defendant’s placement of goods into commerce with the expectation that they will be purchased by consumers within the forum state may indicate purposeful availment. However, that does not amend the general rule of personal jurisdiction. The principal inquiry is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. Also important is that the defendant’s actions must manifest an intention to submit to the power of the forum jurisdiction; in other words, the defendant’s nationwide distribution scheme did not evidence any intention to do business in the forum state of New Jersey. Thus, personal jurisdiction over the defendant was lacking.

In Goodyear v. Brown, the Court held that the courts in North Carolina had no personal jurisdiction over Goodyear’s subsidiaries, because the claims were unrelated to any of the subsidiaries’ activities in that state.

Federal Preemption of State Law

In Pliva v. Mensing, the Court concluded that state tort law, which would have required generic drug manufacturers to change their labels to include other known side effects, directly conflicted with federal law, which requires generic drug manufacturers to use the same labels approved by the FDA for the brand-name version of the drug. Thus, even though users of brand-name drugs have causes of action under both state and federal law, users of generic drugs have no remedy under state law.

Class Actions

In Wal-Mart v. Dukes, the Court held that a nationwide class of female employees was not properly certified, because the putative class had not established commonality under Rule 23(a). The Court also held that the plaintiffs’ claims for backpay were not properly certified under Rule 23(b)(2), because awarding backpay would require an individualized inquiry for each class member. Such an individualized inquiry would belong in a Rule 23(b)(3) class, but not a Rule 23(b)(2) class.

Arbitration

In AT&T v. Concepcion, the Court held that California’s rule that arbitration provisions disallowing classwide proceedings are unconscionable, was preempted by the FAA. Noting the FAA’s liberal policy favoring arbitration and the need to place arbitration agreements on equal footing with other contracts by enforcing them according to their terms, the Court concluded that class arbitration—to the extent that it is manufactured by California’s rule—interferes with the fundamental attributes of arbitration.

Actions Against the Government

In Virginia Office of Protection & Advocacy v. Stewart, the Court held that Ex Parte Young allows a federal court to hear a lawsuit for prospective relief against state officials brought by another agency of the same state.

In Sossamon v. Texas, the Court held that states, by accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under the federal Religious Land Use and Institutionalized Persons Act of 2000.

In Schindler v. United States, the Court held that a federal agency’s written response to a FOIA request for records is a “report” within the meaning of the public disclosure bar of the False Claims Act.

Claim Preclusion

In United States v. Tohono O’odham Nation, the Court held a plaintiff could not file an action in the Court of Federal Claims if it has already filed suit in a federal district court based upon the same allegations and operative facts.

In Smith v. Bayer, the Court held that the district court had exceeded its authority under the relitigation exception to the Anti-Injunction Act when it enjoined a state court from considering a request for class certification. The district court’s denial of a similar class certification request by a different plaintiff did not preclude other plaintiffs from proceeding in state court when it is unclear whether the certification issues in the state court were the same, and the state court plaintiffs were neither party to the federal suit nor covered by any exceptions to the rule against nonparty preclusion.

Immigration/Citizenship

In Chamber of Commerce of the United States v. Whiting, the Court held that the federal Immigration Reform and Control Act did not preempt the challenged portions of Arizona’s Legal Arizona Workers Act, specifically the provisions that allow for the suspension of business licenses for employers of unauthorized aliens.

In Flores-Villar v. United States, an equally divided Court affirmed (in a one-sentence per curiam decision) the decision of the Ninth Circuit upholding as constitutional a citizenship-transmission statute that imposes different standards for children born out of wedlock outside of the United States depending on whether the child’s mother or father is a U.S. citizen.

Environmental

In American Electric Power Co. v. Connecticut, the Court considered a carbon dioxide emissions challenge. In that case, two groups of plaintiffs filed suit against five major electric power companies, alleging that as the largest emitters of carbon dioxide in the United States, those companies contributed to global warming and the emissions interfered with public rights in violation of the federal common law of interstate nuisance and state tort law. The plaintiffs sought a decree capping the amount of carbon dioxide emissions for these defendants. An equally divided Court (Justice Sotomayor did not take part in the case) held that the exercise of jurisdiction was proper, and the case was not barred by the political question doctrine. The Court went on to conclude that the Clean Air Act, and the EPA actions authorized by the Clean Air Act, displaced any federal common law right to seek abatement of carbon dioxide emissions. That the EPA has yet to take action does not change the fact that the federal common law is displaced.

Securities

In Janus Capital Group v. First Derivative Traders, the Court held that an investment adviser and administrator who assisted in the preparation of a prospectus for a mutual fund (a separate entity from the adviser/administrator), but who did not itself “make” the statements in the prospectus, could not be held liable to a class of investors under Rule 10b-5 for false statements in the prospectus.

In Erica P. John Fund v. Halliburton, the Court held that securities fraud plaintiffs need not prove that the alleged fraud caused them to lose money to receive class certification, though they would eventually have to prove those losses to prevail in the case.

Patents

In Global-Tech Appliances v. SEB, the Court held that induced infringement under 35 U.S.C. § 271(b) requires knowledge that the induced acts constitute patent infringement, and deliberate indifference to a known risk that a patent exists does not satisfy this knowledge requirement.

In Microsoft v. i4i Limited Partnership, the Court held that § 282 of the Patent Act requires an invalidity defense to be proved by clear and convincing evidence.

In Stanford University v. Roche Molecular, the Court held that the Bayh-Dole Act does not automatically vest title to federally funded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions. The right to patent an invention belongs to the person who created the invention rather than the inventor’s employee, unless the employer and employee agree otherwise. That rule does not change merely because the invention was created with the assistance of federal funding.

ERISA

In CIGNA v. Amara, the Court held that while § 502(a)(1)(B) of ERISA did not give the district court authority to reform CIGNA’s pension plan, relief was authorized under § 502(a)(3), which allows a participant, beneficiary, or fiduciary “to obtain other appropriate equitable relief” to redress violations of ERISA “or the [plan’s] terms.”

Bankruptcy

In Stern v. Marshall, the Court held that the bankruptcy court had the statutory authority to issue a final and binding decision on a claim based exclusively on a right assured by state law, but that the court nonetheless lacked the constitutional authority under Article III to do so.

Federal Employers’ Liability Act

In CSX Transportation v. McBride, the Court held that FELA does not incorporate the proximate cause standards developed in common law tort cases. Instead, a railroad causes or contributes to an employee’s injury if the railroad’s negligence plays any part in bringing about the injury.

Federal Communications Commission

In Talk America v. Michigan Bell, the Court held that because the FCC has advanced a reasonable interpretation of its regulations (that to satisfy its duty under § 251(c)(2) of the Telecommunications Act of 1996, a carrier must make its existing entrance facilities available to competitors at cost-based rates if the facilities are to be used for interconnection), the Court will defer to the views of the FCC. Thus, the FCC could bar AT&T from charging market rates for access to the equipment its competitors need to access AT&T’s network.

Remedies

In General Dynamics v. United States/Boeing v. United States, the Court held that when, to protect state secrets, a court dismisses a government contractor’s prima facie valid affirmative defenses to the government’s allegations of breach of contract, the proper remedy is to leave the parties in the positions they were on the day they filed suit.

Standing

In Arizona Christian School Tuition Org. v. Winn, the Court held that the plaintiffs (Arizona taxpayers) lacked standing to challenge a tax credit under the Establishment Clause.

Review of Constitutional Rulings

In Alford v. Greene, the Court held it generally may review a lower court’s constitutional ruling at the request of government officials who have won final judgment on qualified immunity grounds. However, the unique circumstances of that case rendered it moot pending appeal, so the Court vacated in part and remanded.

Original Jurisdiction

In Montana v. Wyoming & North Dakota, the Court adopted the report of the Special Master ruled that Montana had failed to state a claim for breach of the Yellowstone River Compact, and that Wyoming’s more efficient irrigation systems were permissible under the Compact (as long as the water conserved by those systems is used to irrigate the same acreage watered in 1950), even though the result is less water flowing downstream to Montana.

Attorney Fees

In Fox v. Vice, the Court held that when there are both frivolous and non-frivolous claims in a plaintiff’s civil rights suit, a court may grant reasonable attorney’s fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.

Attorney-Client Privilege

In United States v. Jicarilla Apache Nation, the Court held that the fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Native American tribes.

Prisoners’ Constitutional Rights

In Brown v. Plata, the Court held a court-mandated limitation on prison population was necessary, and the least restrictive option, to remedy the violation of the prisoners’ constitutional rights to basic sustenance, including medical care.

Criminal/Habeas

In DePierre v. United States, the Court held that the term “cocaine base,” as used in a federal sentencing statute establishing mandatory minimum sentences for certain offenses involving cocaine base, includes all cocaine in its chemically basic form, not just crack cocaine.

In Ashcroft v. al-Kidd, the Court held that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the ground that the arresting authority allegedly had an improper motive, i.e., investigating the arrested or preventing him from committing future crimes.

In Bullcoming v. New Mexico, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic lab report containing a testimonial certification through the in-court testimony of an analyst who did not sign the document or personally observe the test. If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.

In Turner v. Rogers, the Court held that the case was not moot, even though the petitioner had served his full sentence, because the case was “capable of repetition” while “evading review.” The Court further held that the Due Process Clause of the Fourteenth Amendment does not automatically require a state to provide counsel at civil contempt proceedings, even if that individual faces incarceration. Nonetheless, the circumstances of that case rendered the petitioner’s lack of court-appointed counsel violative of the Due Process Clause.

In Cullen v. Pinholster, the Court held that federal  habeas review is limited to the record that was before the state court that adjudicated the claim on the merits.

In J.D.B. v. North Carolina, the Court held that a child’s age does properly inform the analysis as to whether the child was “in custody” for purposes of Miranda.

In Sykes v. United States, the Court held that using a vehicle while knowingly or intentionally fleeing from a law enforcement officer after being ordered to stop constitutes a “violent felony,” as defined by Indiana law, for purposes of the Armed Career Criminal Act.

In Kentucky v. King, the Court held that the exigent circumstances rule applies as long as the police do not themselves create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment.

In Fowler v. United States, the Court held that to establish a violation of Section 1512(a)(1)(C), which makes it a crime to “kill another person, with intent . . . to prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the . . . possible commission of a Federal offense,” the government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.

In United States v. Tinklenberg, the Court held that the Speedy Trial Act clock stops running whenever a pretrial motion is filed, regardless of whether the motion has any effect on when the trial begins.

In Tapia v. United States, the Court held that 18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

In McNeill v. United States, the Court held that a federal sentencing court must determine whether an offense under state law is a “serious drug offense” by consulting the maximum term of imprisonment applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense, rather than looking to state law at the time of the defendant’s federal sentencing.

In Davis v. United States, the Court held that searches conducted in objectively reasonable reliance on binding decisions of the courts of appeals are not subject to the exclusionary rule.

In Bobby v. Mitts, the Court held that the jury instructions given at the penalty phase of Mitts’ murder trial were not contrary to clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act.

In United States v. Juvenile Male, the Court held that the Ninth Circuit lacked authority to hold that the requirements of the Sex Offender Registration and Notification Act (“SORNA”) violate the Ex Post Facto Clause when applied to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment. At the time of the Ninth Circuit’s decision, the juvenile’s challenge was moot, because the district court’s order of juvenile supervision had expired, and he was no longer subject to the sex-offender-registration provisions that he challenged on appeal.

In Bond v. United States, the Court held that a criminal defendant who is indicted on charges that she violated a federal statute has standing to challenge the validity of the statute on the ground that it infringes on the powers reserved to the states under the Tenth Amendment.

Abbott is the Editor of Stare Decisis and Chair of the Primerus Young Lawyers Section Newsletter Committee. She is an attorney with Christian & Small LLP in Birmingham, Alabama, where she is a member of the firm’s appellate, post-verdict, and briefing practice group. You can reach Abbott at amjones@csattorneys.com.

For more information on Christian & Small, please visit csattorneys.com or the International Society of Primerus Law Firms.