Update on Significant Supreme Court Activity

Mayo Foundation for Medical Education and Research v. United States

• 568 F.3d 675 (8th Cir. 2009), cert. granted, 2010 U.S. LEXIS 4390 (June 1, 2010).
• Question Presented
• Whether the Treasury Department can categorically exclude all medical residents and other full-time employees from the definition of “student” in 26 U.S.C. § 3121(b)(10), which exempts from Social Security taxes “service performed in the employ of a school, college, or university” by a “student who is enrolled and regularly attending classes at such school, college, or university.”
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Mayo_Foundation_for_Medical_Education_and_Research_v._United_States

AT&T Mobility v. Concepcion

• 584 F.3d 849 (9th Cir. Oct. 27, 2009), cert. granted, 2010 U.S. LEXIS 4309 (May 24, 2010), Docket No. 09-893.
• Question Presented
• Whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures — here, class-wide arbitration — when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=AT%26T_Mobility_v._Concepcion

U.S. v. Textron

• 577 F.3d 21 (1st Cir. 2009), cert. denied, 2010 U.S. LEXIS 4373 (May 24, 2010), Docket No. 09-750.
• Question Presented in the Cert. Petition:
• Whether the work-product privilege in Federal Rule of Civil Procedure 26(b)(3), which protects documents that are “prepared in anticipation of litigation or for trial,” is limited to documents that are prepared for use in litigation?
• Petition for Cert. is available at: http://taxprof.typepad.com/files/textron-cert.-petition.pdf
• The United State’s Brief in Opposition is available at: http://taxprof.typepad.com/files/textron-brief.pdf
• Reply Brief for the Petitioner is available at: http://taxprof.typepad.com/files/textron-reply-brief.pdf
• The eleven Amicus Briefs filed in this case are available at: http://taxprof.typepad.com/taxprof_blog/2010/01/textron.html

Golden Gate Rest. Ass’n v. San Francisco

(Constitutional Law)

• 546 F.3d 639 (9th Cir. 2009), Docket No. 08-1515.
• On October 5, 2009, the Court requested the opinion of the Solicitor General on whether to grant certiorari.  On May 28, 2010, the Solicitor General filed a brief in favor of denying cert.
• This case tests the power of state and local governments to require employers to provide minimum spending to cover employees’ health care needs.
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Golden_Gate_Restaurant_Association_v._San_Francisco

Holy See v. Doe

• 557 F.3d 1066 (9th Cir. Mar. 3, 2009), Docket No. 09-1.
• On November 26, 2009, the Court requested the Solicitor General’s opinion on whether to grant cert.  On May 21, 2010, the Solicitor General filed a brief in favor of either granting cert, vacating the 9th Circuit’s decision and remanding to the 9th Circuit for further consideration, or, in the alternative, denying cert.
• Question Presented in the Cert. Petition
• Whether the FSIA’s tort exception confers jurisdiction when the tortious act itself falls outside the scope of employment but state law extends vicarious liability based upon non-tortious precursor conduct falling within the scope of employment?
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Holy_See_v._Doe

Ortho Biotech Products v. United States ex rel. Duxbury

• 579 F.3d 13 (1st Cir. Aug. 12, 2009), Docket No. 09-654.
• On February 22, 2010, the Court requested the opinion of the Solicitor General on whether to grant certiorari.  On May 19, 2010, the Solicitor General filed a brief in favor of denying cert.
• Questions Presented in the Cert. Petition
• Whether a federal court lacks subject-matter jurisdiction over a qui tam suit under the False Claims Act that repeats publicly disclosed allegations from prior litigation, when the FCA relator did not provide the government with information on the suit’s allegations before the public disclosure?
• Whether an FCA relator, alleging that the defendant induced a third party to submit false or fraudulent claims, can satisfy Rule 9(b) of the Federal Rules of Civil Procedure without identifying a single false or fraudulent claim, but merely by alleging facts sufficient “to strengthen the inference of fraud beyond possibility.”
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Ortho_Biotech_Products_v._United_States_ex_rel._Duxbury

Pfizer v. Abdullahi

(Alien Tort Claims Act)

• 562 F.3d 163 (2d Cir. 2009), Docket No. 09-34.
• On November 2, 2009, the Court requested the opinion of the Solicitor General on whether to grant certiorari.  On May 28, 2010, the Solicitor General filed a brief in favor of denying cert.
• This case presents the question whether the Alien Tort Claims Act’s jurisdiction can extend to a private actor based on alleged state action by a foreign government when there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law.
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?search=pfizer&go=Go

Thompson v. North American Stainless, LP

(Associational Retaliation)

• 567 F.3d 804 (6th Cir. 2008), en banc, Docket No. 09-291.
• On December 9, 2009, the Court requested the opinion of the Solicitor General for the government’s view on associational retaliation under Title VII, that is, whether a plaintiff may bring a retaliation claim alleging that he/she was retaliated against because of his/her association with a person in a protected category.  The Sixth Circuit sharply divided on this issue in an en banc opinion.  On May 25, 2010, the Solicitor General filed a brief recommending that the Court deny cert.
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Thompson_v._North_American_Stainless

U.S. Chamber of Commerce v. Candelaria

(Preemption)

• 558 F.3d 856 (9th Cir. 2008), Docket No. 09-115.
• On November 2, 2009, the Court requested the opinion of the Solicitor General on whether to grant certiorari.  On May 28, 2010, the Solicitor General filed a brief advising the Court to grant cert limited only to the first question presented.
• Questions Presented in Petition for Writ of Certiorari:
• Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.“ 8 U.S.C. § 1324a(h)(2).
• Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.
• Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Chamber_of_Commerce_of_the_United_States_v._Candelaria

Virginia Office for Protection and Advocacy v. Reinhard

(Constitutional Law – 11th Amendment)

• 568 F.3d 110 (4th Cir. 2009), Docket No. 09-529.
• On January 19, 2010, the Court requested the opinion of the Solicitor General on whether to grant certiorari.  On May 21, 2010, the Solicitor General filed a brief in favor of granting cert.
• Question Presented in Cert. Petition:
• Whether the Eleventh Amendment categorically precludes an independent state agency from bringing an action in federal court against state officials for prospective injunctive relief to remedy a violation of federal law under the doctrine of Ex parte Young. 
• For Briefs and Other Related Documents, see: http://www.scotuswiki.com/index.php?title=Virginia_Office_for_Protection_and_Advocacy_v._Reinhard 

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