The first Monday in October represents the start of a new term for the United States Supreme Court. The Supreme Court has already agreed to hear over 50 cases during the term that begins October 3, 2011. This alert highlights some of the important cases that will be presented in the next few months, organized by their general subject matter.

Constitutional Rights and Criminal Law

Florence v. Board of Chosen Freeholders (Docket No. 10-945)

In this case, the petitioner was allegedly subjected to a strip and visual body-cavity search after being arrested for an outstanding warrant. The Supreme Court is asked whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested (and admitted to the jailing facility/general population) for any minor offense no matter what the circumstances. The decision will serve to resolve a circuit split because some circuits require reasonable suspicion for a strip search of a detainee to take place, while other circuits allow strip searches without any individualized suspicion. Oral argument is scheduled for October 12, 2011.

Rehberg v. Paulk (Docket No. 10-788)

Law enforcement officials are immune from claims for civil damages under 42 U.S.C. § 1983. However, this immunity was limited in a previous Supreme Court decision to the extent that the law enforcement official acts as a “complaining witness” in initiating prosecution of a person by providing a legally invalid arrest warrant. In such a case immunity is unavailable. The issue the Supreme Court is asked to resolve is whether a law enforcement official who provided perjured testimony in front of a grand jury against an innocent citizen was acting as a “complaining witness.” If so, immunity would not be available. Rehberg argues that the “complaining witness” exception to immunity should apply in the context of false grand jury testimony. The Eleventh Circuit Court of Appeals disagreed, holding that absolute immunity existed for law enforcement officials who provide false grand jury testimony, and the “complaining witness” exception did not extend to grand jury testimony. Rehberg appealed to the Supreme Court.

Oral argument was scheduled for Tuesday, November 1st.

U.S. v. Jones (Docket No. 10-1259)

The Supreme Court will decide two issues in this matter. The first issue is whether the Fourth Amendment of the Constitution allows police to put a tracking device on a car without either a warrant or the owner’s permission; the second issue is whether the Fourth Amendment is violated when police, without a valid warrant, use the tracking device to keep track of the car’s whereabouts.

In this case the police, acting without a warrant, put a GPS tracking device on Antoine Jones’s vehicle in order to track the vehicle’s movements for approximately four weeks. The D.C. Circuit Court of Appeals held such an action was an unreasonable search in violation of Jones’s Fourth Amendment rights. The United States appealed to the Supreme Court.  

Oral argument is scheduled for November 8, 2011.

Employment & Labor

Coleman v. Maryland Court of Appeals (Docket No. 10-1016)

In general, state governments cannot be sued in federal court without their consent. The Supreme Court will decide if Congress removed the states’ Eleventh Amendment immunity from lawsuits in federal court when it passed the Family and Medical Leave Act (FMLA). Specifically, this case looks at the self-care provision in the FMLA, which allows a qualified employee to take unpaid leave if he or she has a serious health condition and cannot perform his or her duties. In 2003, the Supreme Court ruled that state employees can bring a federal lawsuit if their state employer violates a different provision in the FMLA relating to care for a family member with a serious health condition. The plaintiff in this case argued that the same logic should be extended to his case, but the U.S. District Court for the District of Maryland disagreed. The Fourth Circuit Court of Appeals affirmed the decision, and the plaintiff brought this appeal before the U.S. Supreme Court.

The date of oral argument is not yet scheduled.

Hosanna-Tabor Church v. EEOC (Docket No. 10-553)

The Supreme Court is asked to decide whether the “ministerial exception” applies to a teacher at a religious elementary school. The ministerial exception prohibits most employment-related lawsuits (in this case, allegations of ADA violations) against religious organizations brought by employees performing religious functions. The exception usually arises in suits involving pastors, priests, rabbis, and other religious leaders. In this case, the claim was made by a teacher who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. The plaintiff argued that her main purpose was to teach secular subjects, and thus she was not a ministerial employee for purposes of the exception. The Sixth Circuit Court of Appeals agreed, and the Church appealed.

Oral argument is scheduled for October 5, 2011.

Knox v. Service Employees International Union, Local 1000 (Docket No. 10-1121)

The Supreme Court will decide whether a state can require employees to pay union dues used to fund political activities as a condition of continuing employment. In California, employees in unionized jobs can decide not to join the union, but they still are required to pay union dues at a slightly lower non-member rate. Each year, unions are required to send out a special notice to employees with an analysis of how the proposed dues will be used (called a Hudson notice). In 2005, SEIU, Local 1000 approved an additional mid-year dues assessment to raise money to fight several California ballot initiatives. While SEIU sent out a letter describing the purpose of the mid-year assessment, it did not send out a formal Hudson notice before collecting the assessment. Several employees sued the union, alleging the new assessment violated their constitutional rights, forcing them to pay for political speech they did not support. The district court granted summary judgment in favor of the employees, but the Ninth Circuit Court of Appeals reversed. The objecting employees appealed to the Supreme Court.

The date of oral argument is not yet scheduled.

Pacific Operators Offshore, LLP v. Valladolid (Docket No. 10-507)

The Outer Continental Shelf Lands Act (OCSLA) governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." In this action the Supreme Court seeks to resolve a circuit split over when a worker, or his heir, may recover compensation when the worker is injured on land. The circuit court decisions provide three options regarding a worker’s eligibility: (1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (Third Circuit); (2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (Fifth Circuit); or (3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (Ninth Circuit). The Ninth Circuit Court of Appeals stated “the claimant must establish a substantial nexus between the injury and extractive operations on the shelf.” Pacific Operators Offshore, LLP has appealed, although the Ninth Circuit Court ultimately found in its favor, denying coverage for reasons unrelated to the issue presented here.

Oral argument is scheduled for October 11, 2011.

Minneci v. Pollard (Docket No. 10-1104)

The Supreme Court is asked whether a cause of action should exist against individual employees of private companies that contract with the federal government to provide prison services, where the plaintiff has adequate alternative remedies for the harm alleged and the individual defendants have no employment or contractual relationship with the government. The Ninth Circuit Court of Appeals concluded that the cause of action should exist. Minneci, the individual employee accused of violating inmate Pollard’s constitutional rights, appealed.

If affirmed, the Ninth Circuit decision would expand the Supreme Court’s holding in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which provided a cause of action against “federal agents acting under the color of federal law.” The questions presented are thus twofold. First, whether Minneci is a federal agent, and second, whether she was acting under color of federal law.

Oral argument is scheduled for November 1, 2011.

Immigration

Kawashima v. Holder (Docket No. 10-577)

The Supreme Court will consider whether the Ninth Circuit Court of Appeals erred in holding that the Kawashimas’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and the Kawashimas were therefore deportable under relevant immigration law.

The Kawashimas, a married couple, were ordered to be removed to Japan by an Immigration Judge. This decision was affirmed by the Board of Immigration Appeals, and subsequently by the Ninth Circuit Court of Appeals. The Kawashimas appealed to the U.S. Supreme Court.

Oral argument is scheduled for November 7, 2011.

Intellectual Property

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S (Docket No. 10-844)

When the Food & Drug Administration (FDA) approves a drug for multiple uses, the Hatch-Waxman Act allows generic drug makers to avoid contested patent litigation by marketing generic versions of the drug solely for non-patented uses. The FDA lacks the authority and expertise needed to verify the patent information submitted by name-brand drug companies, however, so it defers to their descriptions of the scope of their patents. Such companies can therefore block the approval of generic drugs by submitting overbroad patent descriptions to the FDA, effectively extending their patents to cover non-infringing uses. To combat this problem, the Act allows a "counterclaim seeking an order requiring the [patent] holder to correct or delete the patent information submitted by the holder . . . on the ground that the patent does not claim . . . an approved method of using the drug."

In this case, Caraco Pharmaceutical filed a counterclaim asking the court to require Novo Nordisk to correct information filed with the Food and Drug Administration relating to the scope of a patent filed by Novo Nordisk. The Federal Circuit held that the counterclaim provision effectively authorizes only "delet[ing]" improperly listed patents, but not "correct[ing]" information that misrepresents the scope of the approved uses claimed by a patent.

The Supreme Court will decide whether this counterclaim provision applies where (1) there is "an approved method of using the drug" that "the patent does not claim," and (2) the brand name company submits "patent information" to the FDA that misstates the patent's scope, requiring "correction."

Oral argument is scheduled for December 5, 2011.

Kappos v. Hyatt (Docket No. 10-1219)

When an inventor’s patent application is rejected by the U.S. Patent and Trademark Office, the inventor can initiate what is called a Section 145 civil action. In a Section 145 action, the inventor sues the Patent and Trademark Office in federal court to force them to issue the patent. The Supreme Court will decide if an inventor can introduce new evidence in a Section 145 action that the inventor chose not to provide with his patent application. If so, are there any limitations to how a court can use the new information in reaching its decision? In this case, the Federal District Court for the District of Columbia ruled that the inventor’s negligence in not originally providing the evidence meant that he could not introduce it at his Section 145 trial. The Federal Circuit Court of Appeals reversed, holding that the only limitations on new evidence in a Section 145 hearing were those applicable to evidence offered in all civil cases. The Patent and Trademark Office appealed to the Supreme Court.

The date of oral argument is not yet scheduled.

Mayo Collaborative Services v. Prometheus Laboratories, Inc. (Docket No. 10-1150)

The Supreme Court is asked if a company should be allowed to patent a correlation between drug metabolite levels and patient health. Prometheus Labs developed and patented a test that measures a patient’s response to synthetic immunosuppressant drugs. The Mayo Clinic argues that measuring a patient’s response to a drug and adjusting the dose accordingly is one of the most basic, routine tasks conducted by doctors every day. The Mayo Clinic argues that allowing Prometheus to obtain a patent for this activity would prevent doctors from doing their job effectively, and force them to obtain costly and unnecessary kits from Prometheus to measure and adjust dosages based on a well-known and easily observed statistical correlation. The circuit court had previously upheld Prometheus’ patents, and did so again after the Supreme Court asked it to take a second look. The Mayo Clinic appealed the latest decision to the Supreme Court, which is expected to make a final decision.

Oral Argument is scheduled for December 7, 2011.

Media Regulations

Federal Communications Commission v. Fox Television Stations, Inc. (Docket No. 10-1293)

The Supreme Court will evaluate the Federal Communication Commission’s regulation of indecency on broadcast television and radio. At issue is whether the FCC overstepped its bounds when it fined the FOX network for failing to censor two live broadcasts of the Billboard Music Awards in which celebrities used “the f-word,” and again when it fined ABC for airing an episode of “NYPD Blue” that contained female nudity. The Court must determine if the rules the FCC used to justify the fines are unconstitutionally vague because they use a context based approach that the networks say impermissibly restricts their freedom of speech. This will be the case’s second trip before the Supreme Court. In 2009, the Supreme Court overturned a lower court decision that held that the policy was arbitrary and capricious. Upon reconsideration, the Second Circuit Court of Appeals sided with the TV networks again, and held that the policy was an unconstitutionally vague restriction on the freedom of speech. The FCC appealed to the Supreme Court.

The date of oral argument is not yet scheduled.

Privacy

Federal Aviation Administration v. Cooper (Docket No. 10-1024)

The Supreme Court is asked to decide whether mental and emotional damages amount to “actual damages” within the meaning of the Privacy Act. The Privacy Act allows private individuals to sue the government if their personal data was intentionally mishandled in a way that caused them actual damages. Cooper, the plaintiff in this case, concealed some of his medical information on his application for a pilot’s certificate from the Federal Aviation Administration (FAA). Cooper’s omissions were discovered through a cross-reference with records for recipients of social security disability benefits, which showed that Cooper was taking medication that disqualified him from obtaining a pilot’s certificate. Information provided to the Social Security Administration is confidential and should not have been shared with the FAA. Cooper says he was embarrassed by the disclosure of this private medical information, which included his sexual orientation and HIV-positive status. He sued the government in federal court, alleging violation of the Privacy Act and seeking compensation for his emotional damages. The district court agreed that the Privacy Act had been violated, but ruled that emotional damages do not amount to “actual damages” under the privacy act, so Cooper was not entitled to compensation. The Ninth Circuit Court of Appeals reversed, holding that emotional damages are actual damages. The government appealed to the Supreme Court.

Oral argument is scheduled for November 30, 2011, and will not include Justice Kagan, who has recused herself.

Real Estate

First American Financial Corporation v. Edwards (Docket No. 10-708)

Under the Real Estate Settlement Procedures Act (RESPA), homebuyers may sue banks and title companies if they pay kickbacks or fees for references for real estate settlement services involving federally related mortgage loans. If a company is found to violate these provisions, a homeowner may be entitled to three times the amount charged for the settlement service.

The Supreme Court will decide whether homeowners have “standing” to sue the provider of settlement services, where the kickback given does not affect the price or quality of the services provided. In order to have standing, a plaintiff must show “injury in fact.” First American Financial Corporation argued that a homeowner has no injury in fact if a kickback does not affect the price or quality of the service provided, and thus cannot make a claim under RESPA. The Ninth Circuit Court of Appeals disagreed, finding that the injury-in-fact requirement was fulfilled by the language of the statute. First American Financial Corporation appealed to the Supreme Court.

Oral argument is scheduled for November 28, 2011.

Securities

Credit Suisse Securities v. Simmonds (Docket No. 10-1261)

The Supreme Court will decide how long plaintiffs can wait before filing insider trading allegations under Section 16(b) of the Securities and Exchange Act of 1934. Currently, there are three competing approaches to determining the proper statute of limitations for Section 16(b) actions. The strictest approach gives plaintiffs two years from the date of the trade to file their complaint. The middle approach starts the clock once the corporation discovers facts that should make them aware that insider trading is taking place. The most lenient approach gives plaintiffs two years from the date in which the insider who made the trades discloses them in a mandatory 16(a) report. In this case, the district court dismissed several of the plaintiff’s claims because they were filed almost ten years after the illegal trades occurred. On appeal, the Ninth Circuit disagreed with the lower court, and held that the most lenient “disclosure” rule should have been applied. According to the Ninth Circuit Court of Appeals, since the defendants never filed any disclosure documents covering the trades, the case was filed in time and could be heard by the district court. The defendants appealed to the Supreme Court.

Oral argument is scheduled for November 29, 2011, and will not include Chief Justice Roberts, who has recused himself.

Telemarketing

Mims v. Arrow Financial Services, LLC (Docket No. 10-1195)

The Telephone Consumer Protection Act is intended to prevent unlawful and abusive telephone-based solicitation. Consumers can sue to enforce the Act’s provisions and recover damages from offending telemarketers and debt collectors. The Supreme Court is asked whether consumers can sue in federal court, or whether they are limited to suing in state court when their rights have been violated. Federal courts that have answered this question have not provided consistent results. In this case, the Eleventh Circuit Court of Appeals concluded that the plaintiff could not sue in federal court, and he appealed to the Supreme Court.

Oral argument is scheduled for November 28, 2011.