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During its 2006-2007 term, which concluded on June 28, the U.S. Supreme Court issued 67 signed opinions on cases briefed and argued before it. Included here are the summaries of those decisions. ADMINISTRATIVE LAW BP America v. Burton, 127 S. Ct. 638 The justices held unanimously that a six-year statute of limitations on lawsuits to recover damages does not apply to agency enforcement actions. In 1996, the Department of the Interior’s Minerals Management Service (MMS) ordered BP America Production Co. and Atlantic Richfield Co., which pump natural gas from wells in the San Juan Basin, to pay $4.1 million and $780,000, respectively, to cover royalty deficiencies. Amoco Production Co., BP’s predecessor, calculated the royalty as a percentage of the value of the gas as of the moment it was produced at the well. The MMS insisted that royalties should be calculated based on the value of the gas after it was treated to meet the quality requirements for introduction into the nation’s pipelines. Amoco said MMS’ order was barred by 28 U.S.C. 2415(a), which says, “[E]very action for money damages brought by the United States . . . shall be barred unless the complaint is filed within six years after the right of action accrues.” A District of Columbia federal court ruled that the statute of limitations doesn’t apply to an agency’s administrative order. The U.S. Circuit Court for the District of Columbia affirmed. The justices affirmed. Writing on behalf of the court, Justice Samuel A. Alito Jr. said, “Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Read in this way, � 2415(a)’s text is quite clear: Its key terms � “action” and “complaint” � are ordinarily used in connection with judicial, not administrative, proceedings.” ANTITRUST Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 The justices ruled, 7-2, that a plaintiff filing an antitrust suit under the Sherman Act must allege specific facts in the complaint showing that the defendants had participated in a conspiracy. William Twombly filed a class action on behalf of telephone and Internet service subscribers, claiming that the regional companies created in the aftermath of the breakup of AT&T had violated Section 1 of the Sherman Act. The complaint alleged that the local telephone companies had conspired not to compete with one another and had engaged in other “parallel conduct” aimed at discouraging upstart carriers from breaking into the business. Under the Telecommunications Act of 1996, local phone companies were to open their monopoly markets to competition. In return, they could enter the long-distance market. At the time, the four defendant companies controlled more than 90% of the market for local phone service: Bell Atlantic Corp., BellSouth Corp., Qwest Communications International Inc. and SBC Communications Inc. A New York federal judge dismissed, saying the lawsuit contained no direct factual allegations of conspiracy. The 2d Circuit reversed, holding that those filing the lawsuit had stated “a plausible claim of conspiracy.” The court ruled that Twombly’s pleading, which inferred a conspiracy by the defendants’ “parallel conduct,” was sufficient. The justices reversed, ruling that a complaint under the Sherman Act must allege “some factual context suggesting agreement, as distinct from identical, independent action.” Writing on behalf of the court, Justice David H. Souter said, “Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Souter’s opinion was joined by Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Alito. Justices John Paul Stevens and Ruth Bader Ginsburg dissented. Credit Suisse v. Billing, 127 S. Ct. 2383 The justices ruled, 7-1, that federal antitrust laws do not apply to underwriters and institutional investors that allegedly manipulated the initial public offerings market. A group of 60 investors filed two antitrust class actions in a New York federal court against 10 investment banks, claiming that, from 1997 to 2000, the banks had acted as underwriters, forming syndicates to manipulate the initial public offerings (IPOs) market. The court dismissed the suit, saying antitrust laws didn’t apply to the banks’ conduct. The 2d Circuit reversed, ruling that the plaintiffs could pursue their suit because Congress and the U.S. Securities and Exchange Commission (SEC) had not explicitly immunized the conduct at issue. The justices reversed. Writing on behalf of the court, Breyer said there is no need for an antitrust suit since the SEC actively enforces rules and regulations that forbid market manipulation. Moreover, “there is a serious risk that antitrust courts, with different nonexpert judges and different nonexpert juries, will produce inconsistent results.” Roberts, Stevens, Scalia, Souter, Ginsburg and Alito concurred. Thomas dissented. Leegin Creative v. PSKS, 127 S. Ct. 2705 The justices ruled, 5-4, that vertical minimum resale price maintenance agreements should not be deemed per se antitrust violations under Section 1 of the Sherman Antitrust Act. Leegin Creative Leather Products Inc. sells women’s fashion accessories bearing the “Brighton” brand. PSKS Inc. operates Kay’s Kloset, a women’s apparel store in Lewisville, Texas. In 1997, Leegin instituted the “Brighton Retail Pricing and Promotion Policy,” according to which Leegin refused to sell to retailers that discounted Brighton goods below suggested prices. Leegin discovered Kay’s Kloset had been marking down Brighton’s entire line by 20%, and requested that it cease discounting. Its request refused, Leegin stopped selling to the store. PSKS sued Leegin in a Texas federal court, alleging it had violated antitrust laws by “enter[ing] into agreements with retailers to charge only those prices fixed by Leegin.” Leegin planned to introduce expert testimony describing the pro-competitive effects of its pricing policy. The court excluded the testimony, relying on Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, which makes it per se illegal under Section 1 of the Sherman Act for a manufacturer and its distributor to agree on the minimum price the distributor can charge for the manufacturer’s goods. The jury awarded PSKS $1.2 million, which the court trebled. The 5th Circuit affirmed. The justices reversed, overruling Dr. Miles, and holding that vertical price restraints are to be judged by the rule of reason. Writing on behalf of the court, Kennedy said that vertical retail-price agreements can have pro-competitive or anti-competitive effects, depending on the circumstances in which they were formed. And a per se rule cannot be justified by the possibility of higher prices absent a further showing of anti-competitive conduct. Kennedy’s opinion was joined by Roberts, Scalia, Thomas and Alito. Breyer’s dissent was joined by Stevens, Souter and Ginsburg. Weyerhaeuser v. Ross-Simmons, 127 S. Ct. 1069 The justices ruled unanimously that the two-pronged test that the high court had established in 1993 for antitrust “predatory pricing” claims also applies to “predatory bidding” claims. Ross-Simmons Hardwood Lumber Co. Inc., a sawmill, filed an antitrust suit against Weyerhaeuser Co., alleging that Weyerhaeuser drove it out of business by bidding up the price of sawlogs to a level that prevented Ross-Simmons from being profitable. A Washington federal jury returned a verdict in favor of Ross-Simmons. The 9th Circuit affirmed, rejecting Weyerhaeuser’s argument that the test applied to antitrust predatory-pricing claims in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) should apply to antitrust predatory-bidding claims. The justices reversed, holding that the Brooke Group test applied equally to antitrust predatory-pricing and predatory-bidding claims. Writing on behalf of the court, Thomas said predatory-pricing and predatory-bidding claims both need to prove the deliberate use of unilateral pricing measures for anti-competitive purposes and the incurring of short-term losses in the expectation of huge profits later. A predatory-bidding plaintiff must prove that the predator’s bidding caused the cost of the relevant output to rise above the revenues generated in the sale of those outputs. Only higher bidding that leads to below-cost pricing in the relevant output market will suffice as a basis for predatory-bidding liability. ATTORNEY FEES Sole v. Wyner, 127 S. Ct. 2188 The justices ruled unanimously that a party cannot be awarded attorney fees in an action brought under 42 U.S.C. 1983 if it wins a preliminary injunction but does not ultimately win on the merits. T.A. Wyner notified the Florida Department of Environmental Protection in mid-January 2003 of her intention to create on Valentine’s Day, within MacArthur State Beach Park, an antiwar artwork consisting of nude individuals assembled into a peace sign. The department said the participants would have to comply with Florida’s “Bathing Suit Rule.” Invoking the First Amendment, Wyner filed suit in a Florida federal court, seeking immediate injunctive relief against interference with the peace sign display and permanent injunctive relief against interference with future activities involving nudity. The court granted the preliminary injunction, suggesting that a curtain or screen could satisfy the interests of both the state and Wyner. Subsequently, the court denied the permanent injunction, but awarded Wyner attorney fees as the prevailing party. The 11th Circuit affirmed. The justices reversed, holding that a party that wins a preliminary injunction that is undone by subsequent litigation in the same case is not the prevailing party. Writing on behalf of the court, Ginsburg said Wyner’s temporary success rested on a premise � the understanding that a curtain or screen would adequately serve Florida’s interest in shielding the public from nudity � that the court ultimately rejected. The final decision rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive nudity. Florida’s “Bathing Suit Rule remains in place; Wyner has gained no enduring change in the legal relationship between herself and the state officials she sued.” Travelers Casualty v. Pacific Gas, 127 S. Ct. 1199 The justices decided unanimously that federal bankruptcy law permits claims for attorney fees incurred while litigating bankruptcy law issues. Pacific Gas and Electric Co. (PG&E) filed for Chapter 11 bankruptcy. Travelers Casualty & Surety Co., which had previously issued a $100 million surety bond on PG&E’s behalf, guaranteeing PG&E’s payment of state workers’ compensation benefits to injured employees, asserted a claim in the bankruptcy action to protect itself in case PG&E defaulted on its workers’ compensation benefits. In response, PG&E agreed to insert language into its reorganization plan and disclosure statement to protect Travelers’ right to indemnity and subrogation in the event of a default by PG&E. Following litigation, Travelers and PG&E entered into a stipulation that Travelers may assert its claim for attorney fees under the indemnity agreements as a general unsecured claim against PG&E. Travelers sought to recover the attorney fees. PG&E objected, arguing that Travelers could not recover attorney fees incurred while litigating issues of bankruptcy law. The bankruptcy court rejected the claim. A California federal court affirmed, as did the 9th Circuit. The justices reversed. Writing on behalf of the court, Alito said that a contract allocating attorney fees that is enforceable under substantive, nonbankruptcy law is allowable in bankruptcy unless the Bankruptcy Code provides otherwise. Because Travelers’ attorney fees claim has nothing to do with the exceptions set forth in the code, it must be allowed. BANKING Watters v. Wachovia, 127 S. Ct. 1559 The justices ruled, 5-3, that the National Bank Act and the regulations promulgated by the Office of the Comptroller of the Currency (OCC) pre-empt state laws on mortgage lending by national banks and their subsidiaries. Wachovia Bank N.A. conducts its real estate lending business through Wachovia Mortgage Corp., a wholly owned subsidiary. Michigan law exempts banks from state mortgage-lending regulation, but requires subsidiaries to register with the state’s Office of Insurance and Financial Services and submit to state supervision. Wachovia Mortgage and Wachovia Bank filed suit in a Michigan federal court contending that the National Bank Act and OCC’s regulations pre-empt application of Michigan mortgage-lending laws to a national bank’s operating subsidiary. The court granted summary judgment to Wachovia; the 6th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Ginsburg said that federally chartered banks are subject to state laws in their daily business to the extent such laws do not conflict with the letter or purposes of the bank act. This act expressly authorizes national banks to engage in mortgage lending, subject to OCC regulation. State law may not significantly burden a bank’s exercise of that power. In particular, real estate lending, when conducted by a national bank, is immune from state control: The act specifically vests exclusive authority to examine and inspect in the OCC. Ginsburg was joined by Kennedy, Souter, Breyer and Alito. Stevens’ dissent was joined by Roberts and Scalia. BANKRUPTCY Marrama v. Citizens Bank Mass., 127 S. Ct. 1105 The justices ruled, 5-4, that, under the Bankruptcy Code, a debtor’s right to convert a Chapter 7 bankruptcy to a Chapter 13 proceeding is not absolute, and may be forfeited. In filing a Chapter 7 bankruptcy petition, Robert Marrama misrepresented the value of his Maine property and claimed falsely that he had not transferred it during the preceding year. Marrama sought to convert the proceeding to Chapter 13. The bankruptcy judge denied his request, finding bad faith. Affirming, the 1st Circuit rejected Marrama’s argument that he had an absolute right to convert under Section 706(a) of the Bankruptcy Code. The justices affirmed, holding that Marrama had forfeited his right to convert because he didn’t qualify as a debtor under Chapter 13. Writing on behalf of the court, Stevens said that Section 706(a) does not limit a court’s authority to take appropriate action in response to fraudulent conduct by a litigant who has demonstrated that he is not entitled to the relief available to the typical debtor. Stevens’ opinion was joined by Kennedy, Souter, Ginsburg and Breyer. Alito, Roberts, Scalia and Thomas dissented. BUSINESS LAW Tellabs v. Makor Issues & Rights, 127 S. Ct. 2499 The justices ruled, 8-1, that under the Private Securities Litigation Reform Act of 1995 (PSLRA), an inference of criminal intent to defraud must be more than merely plausible or reasonable; it must be at least as compelling as any opposing inference of nonfraudulent intent. Shareholders filed a class action in an Illinois federal court, alleging that Tellabs and its chief executive officer, Richard Notebaert, had engaged in securities fraud. Tellabs moved to dismiss the complaint on the ground that the shareholders had failed to plead their case with the particularity required by the PSLRA. The court dismissed, saying the shareholders had insufficiently alleged that Notebaert had acted with intent to defraud. The 7th Circuit reversed. The justices reversed. Writing on behalf of the court, Ginsburg said that Congress did not merely require plaintiffs to allege facts from which an inference of a criminal intent could rationally be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a “strong” inference. The inference of criminal intent must be at least as compelling as any plausible opposing inference one could draw from the facts alleged. Roberts, Scalia, Kennedy, Souter, Thomas, Breyer and Alito concurred. Stevens dissented. CIVIL PRACTICE Office of Sen. Dayton v. Hanson, 127 S. Ct. 2018 The justices held unanimously that they don’t have jurisdiction to consider a suit brought by a former employee of a U.S. senator who alleged his employer had violated the Family and Medical Leave Act and the Fair Labor Standards Act. Brad Hanson worked in the office of former U.S. Senator Mark Dayton, D-Minn. On being dismissed in 2002, Hanson sued Dayton’s office under the Congressional Accountability Act of 1995, seeking back pay and money for damages from the government. Hanson said he was fired after telling the senator of his need for an operation to correct a cardiac arrhythmia. Dayton’s office sought to dismiss, claiming the suit was barred by the U.S. Constitution’s speech and debate clause, which insulates legislative actions from judicial scrutiny. A D.C. federal court denied the motion. The D.C. Circuit affirmed. The justices reversed. Under Section 412 of the Congressional Accountability Act, the high court can review lower court rulings on the constitutionality of the act. But in this case, Stevens wrote, the court lacked jurisdiction because “Neither the order of the District Court denying appellant’s motion to dismiss nor the judgment of the Court of Appeals affirming that order can fairly be characterized as a ruling ‘upon the constitutionality’ of any provision of the Act.” Osborn v. Haley, 127 S. Ct. 881 The justices held, 7-2, that a declaration by the U.S. attorney general that a federal employee was acting within the scope of his official duties suffices under the Federal Employees Liability Reform and Tort Compensation Act of 1988, the so-called Westfall Act, to justify transfer of the case from state to federal court and the substitution of the federal government as the defendant. Pat Osborn sued Barry Haley, a U.S. Forest Service employee, in state court, alleging Haley had conspired to cause her wrongful discharge. The U.S. attorney general certified that Haley was acting within the scope of his employment, removed the case to a Kentucky federal court, denied the alleged conduct ever took place and sought to substitute the federal government for Haley. The court rejected the Westfall Act certification and remanded the case to the state court. The 6th Circuit reversed. The justices affirmed, holding that the district court had misconstrued the Westfall Act. Writing on behalf of the court, Ginsburg said, “Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations. The United States . . . must remain the federal defendant in the action unless and until the District Court determines that the employee . . . engaged in conduct beyond the scope of his employment.” Ginsburg’s opinion was joined by Roberts, Stevens, Kennedy, Souter, Breyer and Alito. Scalia and Thomas dissented. Powerex v. Reliant, 127 S. Ct. 2411 The justices held, 7-2, that a federal appellate court has no jurisdiction to hear an appeal on when a foreign company doing business in the United States is to be treated as a foreign sovereign. After the California energy crisis of 2000 and 2001, state and individual energy consumers filed suit in California state court against Reliant Energy and other California generators of power, alleging conspiracy to fix electricity prices. Reliant and others sought immunity as agencies of the U.S. government. A California federal court ruled that all but Powerex Corp. were immune from suit, and remanded the case to state court. Powerex appealed, arguing that, as a wholly owned subsidiary of a corporation wholly owned by the Canadian province of British Columbia, it was a foreign sovereign under the Foreign Sovereign Immunities Act of 1976 (FSIA). The plaintiffs said the appeal was jurisdictionally barred by 28 U.S.C. 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal.” The 9th Circuit held that Section 1447(d) did not preclude it from reviewing substantive issues of law that preceded the remand order, but affirmed as to Powerex’s not being a foreign sovereign. The justices reversed. Scalia said that Section 1447(d) bars appellate review of the remand order and the FSIA claim. The district court’s remand had been based on lack of subject-matter jurisdiction. Review of the district court’s characterization of its remand order should be limited to whether there was an argument in support of the district court’s rationale. Scalia’s opinion was joined by Roberts, Kennedy, Souter, Thomas, Ginsburg and Alito. Breyer and Stevens dissented. Sinochem v. Malaysia, 127 S. Ct. 1184 The justices ruled unanimously that a federal district court is not required to determine whether it has subject-matter or personal jurisdiction in a case before dismissing it for the sake of convenience. Sinochem International Co. Ltd., a Chinese state-owned importer, entered into a contract with Triorient, an American corporation, according to which Sinochem would purchase steel coils and Triorient would be paid under a letter of credit by producing a valid bill of lading certifying that the coils had been loaded for shipment to China on or before April 30, 2003. Triorient chartered a vessel owned by Malaysia International, to transport the coils, and hired a stevedoring company to load the coils in Philadelphia. A bill of lading, dated April 30, 2003, triggered payment under the letter of credit. Sinochem petitioned a Chinese admiralty court for preservation of a maritime claim against Malaysia International and an order to arrest the vessel, alleging that the Malaysian company had falsely backdated the bill of lading. The Chinese court ordered arrest of the ship, and Sinochem filed a complaint in that tribunal. Subsequently, Malaysia International filed an action in a Pennsylvania federal court, asserting that Sinochem’s petition to the Chinese court contained misrepresentations, and seeking compensation for losses sustained as a result of the ship’s arrest. Sinochem moved to dismiss, asserting lack of subject-matter and personal jurisdiction and the doctrine of forum non conveniens, under which a federal district court may dismiss an action if a court abroad is a more appropriate and convenient forum for adjudication. The court said it had subject-matter jurisdiction, and speculated that limited discovery might reveal personal jurisdiction under Fed. R. Civ. P. 4(k)(2). However, the court dismissed the case, holding that it could be adjudicated adequately and more conveniently in the Chinese courts. The 3d Circuit reversed, holding that there was subject-matter jurisdiction and that the district court could not dismiss the case under the forum non conveniens doctrine unless and until it had determined that it had both subject-matter and personal jurisdiction. The justices reversed. Writing on behalf of the court, Ginsburg said that this was a textbook case for immediate forum non conveniens dismissal. Although a federal court generally may not rule on the merits of a case without first determining that it has subject-matter and personal jurisdiction, a court has leeway “to choose among threshold grounds for denying audience to a case on the merits.” A court may dispose of an action by a forum non conveniens dismissal, bypassing questions of jurisdiction, when considerations of convenience, fairness and judicial economy so warrant. “Resolving a forum non conveniens motion does not entail any assumption by the court of substantive law-declaring power,” Ginsburg wrote. “Discovery concerning personal jurisdiction would have burdened Sinochem with expense and delay to scant purpose: The district court inevitably would dismiss the case without reaching the merits, given its well-considered forum non conveniens appraisal.” Watson v. Philip Morris, 127 S. Ct. 2301 The justices ruled unanimously that a lawsuit against Philip Morris Cos. Inc. could not be removed from state to federal court solely on the ground that the tobacco industry is regulated by the Federal Trade Commission. Lisa Watson and Loretta Lawson filed a state court suit claiming that Philip Morris had violated Arkansas’ unfair business practice laws by advertising certain cigarette brands as “light” when, in fact, the cigarettes were designed to register lower levels of tar and nicotine in government-approved testing than would be delivered to consumers. Philip Morris removed the case to an Arkansas federal court under the federal officer removal statute. The court upheld the removal, ruling that the petitioners had sued Philip Morris for “acting under” the Federal Trade Commission (FTC). The 8th Circuit affirmed. The justices reversed. Writing on behalf of the court, Breyer said that a firm’s compliance with federal regulations does not by itself mean it’s “acting under” a federal “official.” “There is no evidence of any delegation of legal authority from the FTC to the tobacco industry to undertake testing on the Government agency’s behalf, or evidence of any contract, payment, employer/employee relationship . . . .The usual regulator/regulated relationship cannot be construed as bringing Philip Morris within the statute’s terms.” CIVIL RIGHTS Jones v. Block, 127 S. Ct. 910 The justices ruled unanimously that the Prison Litigation Reform Act (PLRA) doesn’t require an inmate challenging prison conditions to show that he has exhausted all alternative remedies. Michigan prison inmates filed grievances using the Michigan Department of Corrections grievance process. After unsuccessfully seeking redress through that process, Lorenzo Jones filed a 42 U.S.C. 1983 suit against six prison officials. A Michigan federal court dismissed on the merits his complaints against four of them and found that he had failed adequately to plead exhaustion in his complaints against the other two. Timothy Williams also filed a Section 1983 suit. The court found that he had not exhausted his administrative remedies with regard to one of the grievances, and dismissed the suit under the 6th Circuit total exhaustion rules for PLRA cases. The 6th Circuit affirmed in each case. The justices reversed, holding that although exhaustion is mandatory under the PLRA, it doesn’t mean a prisoner must plead and demonstrate exhaustion in his complaint. Writing on behalf of the court, Roberts said that the procedural rules the 6th Circuit, and other courts, adopted to implement the PLRA’s exhaustion requirement “are not required by the PLRA.” Roberts said PLRA claims are typically brought under Section 1983, which does not require exhaustion at all. Parents Involved v. Seattle, 127 S. Ct. 2738 The justices ruled, 5-4, that school districts’ voluntary racial integration programs can’t make student assignments based solely on racial classifications. The Seattle and Jefferson County, Ky., school districts voluntarily adopted student assignment plans that relied on race to determine which schools certain children may attend. The Seattle district classified children as white or nonwhite. The Jefferson County classified students as black or “other.” Parents Involved, a group of Seattle parents, and Crystal Meredith, mother of a Jefferson County student, filed suits contending that allocating children to different public schools based solely on race violates the 14th Amendment’s equal protection guarantee. A Washington federal court granted summary judgment to the Seattle school district. The 9th Circuit affirmed. A Kentucky federal court ruled for the Jefferson County school district. The 6th Circuit affirmed. The justices reversed. Writing on behalf of the court, Roberts said that while the government has an interest in fostering diversity in the student body, that interest can’t focus on race alone, but must encompass “all factors that may contribute to student body diversity . . . including, e.g., having overcome personal adversity and family hardship.” Here, Roberts said, “[U]nder each plan when race comes into play, it is decisive by itself . . . .Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/’other’ terms in Jefferson County.” Scalia, Kennedy, Thomas and Alito concurred. Stevens, Souter, Ginsburg and Breyer dissented. Wallace v. Kato, 127 S. Ct. 1091 The justices ruled, 7-2, that the statute of limitations on a 42 U.S.C. 1983 claim seeking damages for a false arrest begins to run when the claimant is detained pursuant to legal proceedings. In 1994, Chicago police officers arrested 15-year-old Andre Wallace over the shooting of John Handy. Wallace confessed to the murder and waived his Miranda rights. Prior to trial, Wallace sought unsuccessfully to suppress his confession as the product of an unlawful arrest. He was convicted of first-degree murder and sentenced to 26 years in prison. An intermediate Illinois appellate court ruled that the police had arrested Wallace without probable cause. Wallace filed a Section 1983 suit against the city of Chicago. An Illinois federal court and the 7th Circuit ruled that the Section 1983 suit was time-barred because Wallace’s cause of action accrued at the time of his arrest, not when he was released from prison. The justices affirmed. Writing on behalf of the court, Scalia said that the statute of limitations for a Section 1983 suit is two years in Illinois. For false arrest, the statute begins to run when the alleged false imprisonment ends. Wallace’s imprisonment didn’t end when he was released from custody but when he appeared before the examining magistrate and was bound over for trial. Since more than two years had elapsed between that date and the filing of his suit, the action was time-barred. Roberts, Stevens, Kennedy, Souter, Thomas and Alito concurred. Breyer and Ginsburg dissented. COMMUNICATIONS Global Crossing v. Metrophones, 127 S. Ct. 1513 The justices ruled, 7-2, that under the federal Communications Act, a provider of pay-phone services can sue a long-distance carrier for allegedly violating regulations governing compensation for coinless pay-phone calls. The Federal Communications Commission established rules that require long-distance carriers to compensate a pay-phone operator when a caller uses a pay phone to obtain free access to the carrier’s lines. The FCC determined that a carrier’s refusal to pay the compensation is a “practice . . . that is unjust or unreasonable,” within the terms of the Communications Act, 47 U.S.C. 201(b). Section 207 of the act says that “[a]ny person claiming to be damaged by any common carrier . . . may bring suit” against the carrier for “recovery of the damages for which such common carrier may be liable.” In 2003, citing Section 207, Metrophones Telecommunications Inc., a pay-phone operator, sued Global Crossing Telecommunications Inc., a long-distance carrier, arguing it had violated Section 201(b) by failing to pay Metrophones for coinless pay-phone calls. A Washington federal court said a Section 207 claim was proper. The 9th Circuit affirmed. The justices affirmed. Writing for the court, Breyer said that the regulated activity here resembles activity long regulated by both transportation and communications agencies. Traditionally, the FCC, exercising its rate-setting authority, has divided revenues from a call among providers of segments of the call. The pay-phone operator and long-distance carrier resemble those joint providers of communications or transportation services. Breyer was joined by Roberts, Stevens, Kennedy, Souter, Ginsburg and Alito. Scalia and Thomas dissented. CONSTITUTIONAL LAW Brendlin v. California, 127 S. Ct. 2400 The justices held unanimously that a car passenger, like a driver, can challenge the constitutionality of a traffic stop under the Fourth Amendment. Bruce Brendlin was convicted of drug possession after a sheriff’s deputy stopped a car in which he was a passenger. At trial, Brendlin sought unsuccessfully to suppress the evidence of drugs, claiming it was obtained through an unconstitutional seizure, since the police lacked probable cause to make the traffic stop. An intermediate California appellate court ruled the traffic stop was illegal, and reversed. The California Supreme Court reversed, ruling that Brendlin, as the passenger, wasn’t the target of the traffic stop and thus wasn’t the one seized. The justices reversed. Writing on behalf of the court, Souter said that the way to tell if a seizure has taken place is whether, in light of all the circumstances, a reasonable person would believe he is not free to leave. Brendlin was “seized” because no reasonable person in his position would have believed himself free to “terminate the encounter” between the police and himself. FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 The justices held, 5-4, that Section 203 of the Bipartisan Campaign Reform Act is unconstitutional as applied to pre-election issue ads run by Wisconsin Right to Life. Section 203 makes it a federal crime for a corporation to fund broadcasts that refer to a candidate for federal office and are aired within 30 days of a federal primary election or 60 days of a federal general election. On July 26, 2004, Wisconsin Right to Life Inc. began broadcasting advertisements telling voters to contact Wisconsin’s senators to urge them to oppose a Senate filibuster of judicial nominees. Recognizing that as of Aug. 15, 30 days before the Wisconsin primary, the ads would be illegal under Section 203, Right to Life filed suit against the Federal Election Commission, alleging that Section 203′s prohibition was unconstitutional. The district court denied a preliminary injunction, saying the U.S. Supreme Court in McConnell v. Federal Election Comm’n, 540 U.S. 93, had upheld Section 203 against a First Amendment challenge even though the section encompasses “issue advocacy.” The U.S. Supreme Court vacated, holding that McConnell “did not purport to resolve future as-applied challenges” to Section 203. On remand, the district court granted Right to Life summary judgment, holding Section 203 to be unconstitutional as applied to the three ads. The justices affirmed. Writing on behalf of the court, Roberts said that the speech here wasn’t the “functional equivalent” of express campaign speech. Because the ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy, and therefore fall outside McConnell‘s scope. Roberts’ opinion was joined by Scalia, Kennedy, Thomas and Alito. Stevens, Souter, Ginsburg and Breyer dissented. Gonzales v. Carhart, 127 S. Ct. 1610 The justices held, 5-4, that the Partial-Birth Abortion Ban Act of 2003 is not void for vagueness and doesn’t impose an undue burden on a woman’s right to an abortion. LeRoy Carhart, William G. Fitzhugh, William H. Knorr and Jill L. Vibhakar, doctors who perform second-trimester abortions, challenged the constitutionality of the Partial-Birth Abortion Ban Act and sought a permanent injunction against its enforcement. A Nebraska federal court granted an injunction prohibiting the attorney general from enforcing the act in all cases but those in which there was no dispute the fetus was viable. The 8th Circuit affirmed. The justices reversed. Writing on behalf of the court, Kennedy said that the act’s text demonstrates that it only regulates and proscribes the intact dilation and evacuation (D&E) procedure; it does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery. The act is not unconstitutionally vague, for it limits its reach to those physicians who carry out the intact D&E procedure. Kennedy was joined by Roberts, Scalia, Thomas and Alito. Ginsburg’s dissent was joined by Stevens, Souter and Breyer. Hein v. Freedom from Religion, 127 S. Ct. 2553 The justices ruled, 5-4, that taxpayers do not have standing to challenge executive branch actions under the establishment clause of the U.S. Constitution. The Freedom from Religion Foundation filed a lawsuit over the use of government funds to promote President Bush’s Faith-Based and Community Initiatives. A Wisconsin federal court dismissed the case, ruling the foundation has no standing to sue because taxpayers can only challenge the constitutionality of exercises of congressional power under the taxing and spending clause. Here, the challenged activity was not a congressional program. The 7th Circuit reversed, ruling that taxpayers had standing to challenge any activities financed by a congressional appropriation. The justices reversed, holding that the taxpayers had no standing. Writing on behalf of the court, Alito said that the petitioners neither challenge any specific congressional appropriation nor ask the court to invalidate any legislatively created program as unconstitutional. “That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities . . . .The Court has never found taxpayer standing under such circumstances.” Alito’s opinion was joined by Roberts, Scalia, Kennedy and Thomas. Souter’s dissent was joined by Stevens, Ginsburg and Breyer. Morse v. Frederick, 127 S. Ct. 2618 The justices ruled, 5-4, that public schools don’t violate students’ First Amendment rights when they take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. On Jan. 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City. As the torchbearers passed by, high school senior Joseph Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” Deborah Morse, the school principal, confiscated the banner and suspended Frederick for 10 days. The school district superintendent upheld the suspension, explaining that the banner appeared to advocate the use of illegal drugs. Frederick filed suit under 42 U.S.C. 1983, alleging violation of his First Amendment rights. An Alaska federal court granted summary judgment to the school board and Morse. The 9th Circuit reversed. The justices reversed, holding that a principal may restrict student speech when it is reasonably viewed as promoting illegal drug use. Writing for the court, Roberts said “The ‘special characteristics of the school environment’ . . . and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse.” Roberts’ opinion was joined by Scalia, Kennedy, Thomas and Alito. Stevens, Souter, Ginsburg and Breyer dissented. Scott v. Harris, 127 S. Ct. 1769 The justices held, 8-1, that a police officer who rammed a fleeing suspect’s car, forcing it to crash, acted “reasonably” under the Fourth Amendment. In March 2001, Timothy Scott, a Georgia county deputy, chased a speeding car driven by Victor Harris. The chase ended with Scott applying his bumper to the rear of Harris’ car, which left the roadway, overturned and crashed. Harris, rendered a quadriplegic, filed suit under 42 U.S.C. 1983 alleging that the use of excessive force resulted in an unreasonable seizure under the Fourth Amendment. A Georgia federal court denied summary judgment for Scott on the ground of qualified immunity. The 11th Circuit affirmed. The justices reversed. Writing for the court, Scalia said that Scott was entitled to summary judgment because the car chase Harris had initiated posed a substantial and immediate risk of serious physical injury to others. Scalia said “a police officer’s attempt to terminate a dangerous high-speed car chase . . . does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Roberts, Kennedy, Souter, Thomas, Ginsburg, Breyer and Alito concurred. Stevens dissented. CONSUMER PROTECTION Safeco Insurance v. Burr, 127 S. Ct. 2201 The justices held unanimously that initial rates charged for new insurance policies may be adverse actions under the Fair Credit Reporting Act (FCRA). Safeco, which relies on credit reports to set initial insurance premiums, offered Charles Burr higher than the best rates possible without sending him an adverse-action notice. Burr joined a proposed class action, alleging willful violation of Section 1681 of the FCRA. An Oregon federal court granted Safeco summary judgment on the ground that offering a single, initial rate for insurance cannot be an “adverse action.” The 9th Circuit reversed. Geico sends an adverse-action notice only if a neutral credit score would have put the applicant in a lower-priced tier or company. The applicant is not otherwise told whether he or she would have received better terms with a better score. Ajene Edo applied for auto insurance with Geico. After obtaining Edo’s credit score, Geico offered him a standard policy at rates higher than the most favorable, which he accepted. Because Edo’s company and tier placement would have been the same with a neutral score, Geico did not send Edo an adverse-action notice. Edo filed a proposed class action, alleging willful violation of Section 1681. An Oregon federal court granted summary judgment to Geico, finding no adverse action because the premium would have been the same had Edo’s credit history not been considered. The 9th Circuit reversed, ruling the “plain language” of the FCRA requires notice “whenever a consumer pays a higher rate because his credit rating is less than the top potential score.” The justices reversed, even though they held that an adverse initial pricing decision constitutes an “increase” within the meaning of the “adverse action” notice requirement. Writing on behalf of the court, Souter said that there was nothing in the statute to suggest that “remedies for consumers disadvantaged by unsound credit ratings should be denied to first-time victims . . . .[N]othing about insurance contracts suggests that Congress meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.” However, Souter said that Geico did not owe Edo an adverse-action notice because it offered him a rate identical to the one he would have received had his credit score not been considered. And Safeco’s interpretation of the statute, although erroneous, was “not objectively unreasonable” when made and was thus not “reckless” as a matter of law. CRIMINAL PRACTICE Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 The justices ruled, 5-4, that because there is a reasonable likelihood that a trial court’s instructions prevented jurors from giving proper consideration to constitutionally relevant mitigating evidence, a capital defendant was entitled to federal habeas relief. Abdul-Kabir was sentenced to death after being convicted of first-degree murder. His lawyers contended that the jury had not been permitted to take into account childhood mistreatment and abandonment that contributed to his violent adult behavior. The Texas Court of Criminal Appeals affirmed. Abdul-Kabir filed a federal habeas petition. Denying his petition, the district court cited 5th Circuit rulings holding that for a Penry claim to prevail, a defendant must show a nexus between his condition and the crime attributed to that condition. The 5th Circuit denied Abdul-Kabir federal habeas relief. The justices reversed. Writing on behalf of the court, Stevens said that Abdul-Kabir’s mitigating evidence of childhood deprivation and lack of self-control was relevant to his moral culpability. Its purpose was not to rebut either deliberateness or future dangerousness but to provide the jury with an entirely different reason for not imposing death. Stevens’ opinion was joined by Kennedy, Souter, Ginsburg and Breyer. Roberts, Scalia, Thomas and Alito dissented. Ayers v. Belmontes, 127 S. Ct. 469 The justices ruled, 5-4, that California’s special “catchall” instruction to juries in death penalty cases provides enough opportunity for jurors to consider all favorable evidence for the accused. In 1981, Fernando Belmontes beat 19-year-old Steacy McConnell to death while he was robbing her Victor, Calif., home. The trial judge told the jury to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” an instruction known as “factor (k)” under California’s then-applicable statutory scheme. Belmontes was convicted of the crime and sentenced to death. The 9th Circuit overturned the death sentence, holding that the trial judge had failed to tell jurors that they must consider the prospect of Belmontes living a productive life behind bars based on his good behavior during an earlier commitment to a California correctional facility. The justices reversed. Writing on behalf of the court, Kennedy said that the 9th Circuit was wrong to conclude that jurors might have failed to take all of the evidence into account before settling on a sentence of death. The judge’s instruction, Kennedy said, went far enough to ensure that the jury would not only consider favorable evidence about the crime itself, but also evidence that the individual would not be dangerous in the future if his life were spared. Kennedy was joined by Roberts, Scalia, Thomas and Alito. Stevens, Souter, Ginsburg and Breyer dissented. Bowles v. Russell, 127 S. Ct. 2360 The justices ruled, 5-4, that a federal appeals courts cannot consider an appeal that was filed after the time for filing a notice of appeal had expired. Kevin Bowles was convicted of murder in 1999. His initial appeal was rejected by an Ohio federal judge. His lawyer sought to reopen his appeal. Under a federal rule of civil procedure he had 14 days to file a notice. The judge granted his motion to reopen the appeal on Feb. 10, 2004, but inexplicably said his notice must be filed by Feb. 27. Bowles’ notice was filed on Feb. 26, the day before the judge’s deadline. But this was two days beyond the legal deadline. State prosecutors insisted the appeal should be thrown out because of the missed deadline, and that an appeals court had no legal authority to hear the case. The 6th Circuit agreed. The justices affirmed. “Time limits for filing a notice of appeal are jurisdictional in nature” and therefore cannot be waived by judges for reasons for fairness, Thomas wrote on behalf of the court. “We hold that [Bowles'] untimely notice � even though filed in reliance upon a District Court’s order � deprived the Court of Appeals of jurisdiction.” He was joined by Roberts, Scalia, Kennedy and Alito. Souter’s dissent was joined by Stevens, Ginsburg and Breyer. Brewer v. Quarterman, 127 S. Ct. 1706 The justices held, 5-4, that, because under Texas law a trial jury is unable to give meaningful consideration and effect to constitutionally relevant mitigating evidence, a capital defendant is entitled to relief under Penry. Brent Ray Brewer was sentenced to death after being convicted of first-degree murder. At sentencing, Brewer sought to introduce mitigating evidence of mental illness and abuse at the hands of his father. The trial judge told the jury to address only two special issues: whether his conduct was committed deliberately and with the reasonable expectation it would result in his victim’s death and whether it was probable he would commit future violent acts. The Texas Court of Criminal Appeals affirmed. The 5th Circuit denied his habeas petition. The justices reversed. Writing on behalf of the court, Stevens said that the 5th Circuit’s “conclusions that Brewer’s mental-illness . . . evidence could not constitute a Penry violation . . . fail to heed this Court’s repeated warnings about the extent to which the jury must be allowed not only to consider mitigating evidence, or to have such evidence before it, but to respond to it in a reasoned, moral manner and assign it weight in deciding whether a defendant truly deserves death.” Stevens’ opinion was joined by Kennedy, Souter, Ginsburg and Breyer. Roberts, Scalia, Thomas and Alito dissented. Carey v. Musladin, 127 S. Ct. 649 The justices held unanimously that the 9th Circuit was wrong to overturn a state court ruling that allowed a murder victim’s family to wear buttons depicting the victim’s face during a criminal trial. Matthew Musladin was convicted of the first-degree murder of Tom Studer, his former wife’s fiance, and sentenced to 32 years in prison. At the trial, Studer’s mother, father and brother wore buttons bearing his photograph while seated in the front row of the courtroom. Defense counsel objected, but the trial judge rejected the challenge, finding that a photograph alone could not be prejudicial. The 9th Circuit reversed. The justices reversed. Writing on behalf of the court, Thomas said that certain actions by the state at trial � such as forcing a defendant to wear prison garb or surrounding the defendant with uniformed state troopers � are prejudicial enough to cause the reversal of convictions. But the court “has never addressed a claim that . . . private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” Cunningham v. Calif., 127 S. Ct. 856 The justices ruled, 6-3, that California’s “determinate sentencing law” violates the Sixth and 14th amendments to the U.S. Constitution because it allows judges, not juries, to find facts to increase criminal sentences. John Cunningham was tried and convicted of sexually abusing a child under the age of 14. Under the determinate sentencing law, this offense is punishable by imprisonment for a lower term of six years, a middle term of 12 years or an upper term of 16 years. The law obliged the trial judge to sentence Cunningham to 12 years unless he found one or more additional “circumstances in aggravation.” The judge found by a preponderrance of the evidence that the aggravating circumstances far outweighed the one mitigating circumstance, and sentenced Cunningham to the upper term of 16 years. An intermediate state appellate court affirmed. The justices reversed. Writing on behalf of the court, Ginsburg said that California’s determinate sentencing law resembles, in all material respects, the sentencing systems the high court had invalidated in Blakely v. Washington, 542 U.S. 296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005). In Blakely, the justices struck down the Washington state sentencing system because the Sixth Amendment right to a jury trial doesn’t allow judges to make factual findings that increase a sentence beyond the ordinary range for the crime. In Booker, the justices extended Blakely to the Federal Sentencing Guidelines, making them advisory, rather than mandatory. In addition, because California’s law authorizes a judge to find aggravating facts by a preponderance of the evidence only, it violates the high court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), which said that under the Sixth Amendment, any fact (other than a prior conviction) that increases a sentence beyond the relevant statutory maximum must be found by a jury, and established beyond a reasonable doubt, not by a preponderance of the evidence. Ginsburg’s opinion was joined by Roberts, Stevens, Scalia, Souter and Thomas. Kennedy, Breyer and Alito dissented. Fry v. Pliler, 127 S. Ct. 2321 The justices ruled unanimously that a federal court must apply the “substantial and injurious effect” standard of Brecht v. Abrahamson in a federal habeas proceeding when examining the prejudicial effect of constitutional error in a state criminal trial. John Fry was convicted in 1995 of shooting James and Cynthia Bell to death. At trial, Fry sought to offer the testimony of Pamela Maples, who was prepared to testify that she had heard Anthony Hurtz discussing homicides resembling the murder of the Bells. The court excluded her testimony on the ground that there was insufficient evidence to link the incidents to the Bells’ murder. California state appellate courts denied discretionary review. A California federal court denied habeas relief, concluding that though the trial court erred in excluding Maples’ testimony, there was an insufficient showing that the exclusion had had a “substantial and injurious effect” on the jury’s verdict under Brecht v. Abrahamson, 507 U.S. 619, 631. The 9th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Scalia said that a federal court must apply the “substantial and injurious effect” standard of Brecht in all federal habeas proceedings. James v. U.S., 127 S. Ct. 1586 The justices ruled, 5-4, that attempted burglary, as defined by Florida law, qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA). Alphonso James pleaded guilty in a Florida federal court to one count of possessing a firearm. In his plea, James admitted to three prior felony convictions, one of which included a conviction in Florida state court for attempted burglary. At sentencing, the government argued that James was subject to ACCA’s 15-year mandatory minimum term because of his three prior convictions. James claimed attempted burglary did not qualify as a “violent felony” under ACCA. The court held it was a violent felony. The 11th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Alito said that attempted burglary, as defined by Florida law, “involves conduct that presents a serious potential risk of physical injury to another.” Unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, “presents a serious potential risk of physical injury to another.” Alito’s opinion was joined by Roberts, Kennedy, Souter and Breyer. Stevens, Scalia, Ginsburg and Thomas dissented. Lawrence v. Florida, 127 S. Ct. 1079 The justices held, 5-4, that the one-year statute of limitations for seeking federal habeas relief from a state-court judgment, stipulated in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. 2244(d), is not tolled during the pendency of a certiorari petition before the U.S. Supreme Court. A Florida state jury convicted Gary Lawrence of first-degree murder and sentenced him to death. The Florida Supreme Court affirmed, and the U.S. Supreme Court denied certiorari on Jan 20, 1998. On Jan. 19, 1999, 364 days later, Lawrence filed for state post-conviction relief. The relief was denied, and the Florida Supreme Court affirmed, issuing its mandate on Nov. 18, 2002. While Lawrence’s petition for certiorari was pending, he filed a federal habeas application, which was dismissed as untimely under Section 2244(d)’s one-year limitations period. All but one day of the limitations period had lapsed during the 364 days from the time Lawrence’s conviction became final and when he filed for state post-conviction relief. The limitations period was tolled while the Florida courts considered his state application. The federal court concluded that Lawrence had only one day to file a federal habeas application after the Florida Supreme Court issued its mandate. The 11th Circuit affirmed. The justices affirmed, holding that Section 2244(d) doesn’t toll the one-year limitations period during the pendency of a certiorari petition before the U.S. Supreme Court. According to Section 2244(d), Thomas wrote on behalf of the court, the statute of limitations is tolled only while state courts review the application. A state post-conviction application “remains pending . . . until the application has achieved final resolution through the state’s post-conviction procedures.” The U.S. Supreme Court is not a part of those “procedures.” The application is therefore not “pending” after the state court’s post-conviction review is complete. Thomas’ opinion was joined by Roberts, Scalia, Kennedy and Alito. Ginsburg’s dissent was joined by Stevens, Souter and Breyer. Panetti v. Quarterman, 127 S. Ct. 2842 The justices ruled, 5-4, that a death row inmate who was deluded as to the reason for his death sentence may not be mentally competent to face execution. Scott Louis Panetti was convicted and sentenced to death for shooting his in-laws in 1992. Panetti had a history of mental problems; his lawyers said he believes he is on death row because he preaches the word of God. Applying 5th Circuit precedent, a Texas federal court said a prisoner can be executed “so long as he is aware that the State has identified the link between his crime and the punishment to be inflicted.” The 5th Circuit affirmed. The justices reversed. Writing for the court, Kennedy said “It might be said that capital punishment . . . has the potential to make the offender recognize at last the gravity of his crime . . . .Both the potential for this recognition and the objective of community vindication are called into question, however, if the prisoner’s only awareness of the link between the crime and the punishment is so distorted by mental illness that [it] has little or no relation to the understanding shared by the community as a whole.” Kennedy’s opinion was joined by Stevens, Souter, Ginsburg and Breyer. Thomas’ dissent was joined by Roberts, Scalia and Alito. Rita v. U.S., 127 S. Ct. 2456 The justices ruled, 8-1, that a sentence within the Federal Sentencing Guidelines may be presumed to be reasonable when the case is on appeal. Victor Rita was convicted for perjury. Though he had served in the Armed Forces for 25 years and was in poor health, a North Carolina federal judge concluded that the appropriate sentence was 33 months � the bottom of the guidelines range. The 4th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Breyer said, “The record makes clear that the judge listened to each of Rita’s arguments for a downward departure and considered the supporting evidence before finding those circumstances insufficient to warrant a sentence lower than the Guidelines range . . . .[T]his Court simply cannot say that Rita’s special circumstances . . . are special enough . . . to require a sentence lower than the one the Guidelines provide,” Breyer wrote. Roberts, Stevens, Scalia, Kennedy, Thomas, Ginsburg and Alito joined. Souter dissented. Schriro v. Landrigan, 127 S. Ct. 1933 The justices ruled, 5-4, that a federal judge did not abuse his discretion in refusing to allow an Arizona death row inmate to pursue an ineffective assistance of counsel claim after he had refused to allow his lawyer to present mitigating evidence at his sentencing hearing. Jeffrey Landrigan, imprisoned in Oklahoma for second-degree murder, escaped and murdered a man in Arizona. The Arizona jury found Landrigan guilty of felony murder. At sentencing, Landrigan’s counsel sought to present the testimony of Landrigan’s ex-wife and mother as mitigating evidence. At Landrigan’s request, both women refused to testify. Landrigan was sentenced to death. Landrigan filed a federal habeas petition, alleging his attorney had failed to investigate the “biological component” of his violent behavior caused by his biological mother’s use of drugs and alcohol while pregnant. An Arizona federal court refused to grant an evidentiary hearing. An en banc 9th Circuit reversed, holding that Landrigan had raised a “colorable claim” about his counsel’s performance. The justices reversed. Writing on behalf of the court, Thomas said that an evidentiary hearing should only be granted if it could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief. In Landrigan’s case, the district court was well within its discretion to determine that, even with an evidentiary hearing, Landrigan couldn’t develop a factual record entitling him to federal habeas relief. Roberts, Scalia, Kennedy and Alito concurred. Stevens’ dissent was joined by Souter, Ginsburg and Breyer. Smith v. Texas, 127 S. Ct. 1686 The justices ruled, 5-4, that the Texas Court of Criminal Appeals had incorrectly required a capital defendant to show “egregious harm” before correcting the constitutional violation the U.S. Supreme Court found in an earlier decision. A Texas state jury convicted LaRoyce Lathair Smith of first-degree murder and sentenced him to death. Under Texas law, the jury verdict form provides special-issue questions to guide the jury as to whether the death penalty should be imposed. There were three special issues. The first addressed deliberateness; the second future dangerousness; and the third whether the killing was an unreasonable response to provocation by the victim. In Penry v. Lynaugh, 492 U.S. 302 (1989), the justices had ruled that none of these special-issue instructions was “broad enough to provide a vehicle for the jury to give mitigating effect” to the evidence at issue in that case. Texas courts tried to cure the “ Penry error” with a nullification charge. In Smith’s case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was “yes,” but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question with a “no.” In Penry v. Johnson, 532 U.S. 782 (2001), the justices ruled that the nullification charge didn’t cure the Penry error. In 2004, the justices set aside Smith’s death penalty, holding that “findings of deliberateness and future dangerousness . . . had little, if anything, to do with” mitigating evidence. On remand, the Texas Court of Criminal Appeals again denied Smith relief, holding that his pretrial objections didn’t preserve the constitutional error claim. The justices reversed, holding that the Texas high criminal court had misinterpreted their earlier ruling as simply an objection to the nullification charge. Writing on behalf of the court, Kennedy said Smith had challenged the adequacy of the special-issue questions before trial and had not abandoned that claim during lengthy post-trial proceedings. It was on the basis of this Penry error that the justices had granted him relief. Kennedy’s opinion was joined by Stevens, Souter, Ginsburg and Breyer. Roberts, Scalia, Thomas and Alito dissented. U.S. v. Resendiz-Ponce, 127 S. Ct. 782 The justices ruled, 8-1, that an indictment alleging attempted illegal re-entry into the United States need not specifically allege an overt act. Juan Resendiz-Ponce, a Mexican citizen, was convicted of illegally attempting to re-enter the United States. Because his indictment had failed to allege a specific overt act that he had committed in seeking re-entry, the 9th Circuit set aside his conviction and remanded for dismissal of the indictment. The government petitioned the high court for certiorari to answer the question whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. The justices held that because the indictment wasn’t defective, there was no need to address the harmless-error issue. Writing on behalf of the court, Stevens said the indictment implicitly alleged that Resendiz-Ponce had engaged in the overt act by alleging that he “attempted” to enter the country. “Not only does ‘attempt’ as used in common parlance connote action rather than mere intent, but, more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements,” Stevens wrote. His opinion was joined by Roberts, Kennedy, Souter, Thomas, Ginsburg, Breyer and Alito. Scalia dissented. Uttecht v. Brown, 127 S. Ct. 2218 The justices ruled, 5-4, that a state judge had properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty. Cal Coburn Brown carjacked Holly Washa, 21, and drove her to a hotel near Seattle-Tacoma International Airport, where he left her to die. Brown turned himself in after he raped and tried to kill another woman in Palm Springs, Calif. At his trial in a Washington state court, prosecutors challenged Juror Z because he indicated he would impose the death penalty only if the defendant were in a position to kill again. Defense lawyers did not object at trial. Brown was convicted and sentenced to death. State courts and a federal judge affirmed. The 9th Circuit set aside the death sentence. The justices reversed. Writing on behalf of the court, Kennedy said the 9th Circuit should have deferred to the trial court, which had acted well within its discretion in granting the prosecution motion to excuse Juror Z. “The trial court . . . is entitled to deference because it had an opportunity to observe Juror Z’s demeanor. The State’s challenge, Brown’s waiver of an objection, and the trial court’s excusal of Juror Z support the conclusion that the interested parties all felt that removal was appropriate.” Roberts, Scalia, Thomas and Alito concurred. Stevens, Souter, Ginsburg and Breyer dissented. Whorton v. Bockting, 127 S. Ct. 1173 The justices ruled unanimously that their 2004 decision, Crawford v. Washington, which limits out-of-court statements as criminal evidence, was a rule of criminal procedure, not a “watershed rule,” and so can’t be applied retroactively. At Marvin Bockting’s trial for sexual assault on his 6-year-old stepdaughter, the Nevada state court determined that the child was too distressed to testify and allowed Bockting’s wife and a police detective to recount her out-of-court statements about the assaults. Bockting was convicted on three counts of sexual assault on a minor, and the trial court imposed two consecutive life sentences. The Nevada Supreme Court affirmed in 1993, citing the U.S. Supreme Court’s 1980 ruling, Ohio v. Roberts, which held that the confrontation clause permitted the admission of a hearsay statement made by a declarant unavailable to testify if the statement bore sufficient indicia of reliability. While Bockting’s appeal to the 9th Circuit was pending, the U.S. Supreme Court overturned Roberts. Crawford says “testimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].” The 9th Circuit reversed, holding that Crawford applies retroactively. The justices reversed. Writing on behalf of the court, Alito said Bockting’s conviction became final well before Crawford. Because the new rule announced by Crawford was procedural and not substantive, it cannot be applied here unless it were a “watershed rul[e]” implicating “ the fundamental fairness and accuracy of the criminal proceeding.” The rule isn’t necessary to prevent “an impermissibly large risk” of an inaccurate conviction. The Crawford rule did not “alter [this Court's] understanding of the bedrock procedural elements essential to the fairness of a proceeding.” DAMAGES Philip Morris v. Williams, 127 S. Ct. 1057 The justices ruled, 5-4, that a punitive damages award based on a jury’s desire to punish a defendant for harming nonparties is a taking of property without due process. Following the death of Jesse Williams, a heavy cigarette smoker, his widow sued Philip Morris, alleging negligence and deceit. An Oregon state jury awarded compensatory damages of about $821,000 and punitives of $79.5 million. The Oregon Supreme Court affirmed. The justices reversed. Writing on behalf of the court, Breyer said that while punitive damages may properly be imposed to further a “State’s legitimate interests in punishing unlawful conduct and deterring its repetition,” unless a state insists upon proper standards to rein in a jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice . . . of the severity of the penalty that a State may impose.” Breyer’s opinion was joined by Roberts, Kennedy, Souter and Alito. Stevens, Scalia, Thomas and Ginsburg dissented. EMPLOYMENT Beck v. PACE Int’l Union, 127 S. Ct. 2310 The justices ruled unanimously that a company that sponsors its own pension plan for workers has no duty to consider merging it with another plan as a method of terminating it. PACE International Union represents employees covered by single-employer pension plans sponsored and administered by Crown Vantage Inc., a paper company that had filed for bankruptcy. Crown had decided to terminate its pension plans and was considering using the money to buy annuities for plan participants. Crown rejected the union’s proposal to merge the plans with the union’s own multiemployer plan. The union and the plan participants filed an adversary action in a bankruptcy court, alleging that Crown’s directors had breached their fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA) by neglecting to consider PACE’s merger proposal. The court ruled for PACE. A California federal court affirmed. The 9th Circuit affirmed. The justices reversed, holding that there had been no breach of fiduciary duty because merger isn’t a permissible form of plan termination under ERISA. Writing on behalf of the court, Scalia said that plan termination through purchase of annuities “formally severs the applicability of ERISA to plan assets and employer obligations. Upon purchasing annuities, the employer is no longer subject to ERISA’s multitudinous requirements . . . .Merger is fundamentally different: it represents a continuation rather than a cessation of the ERISA regime.” Ledbetter v. Goodyear, 127 S. Ct. 2162 The justices ruled, 5-4, that an employee bringing a lawsuit claiming pay discrimination under Title VII of the Civil Rights Act of 1964 must do so within 180 days of the original discriminatory action � not within 180 days of his or her last paycheck. Lilly Ledbetter worked at Goodyear’s Gadsden, Ala., plant for 19 years. In 1999, after she had retired, she filed suit in an Alabama federal court alleging that, because of sexual discrimination, she was making $6,000 a year less than the lowest-paid man doing the same work. The Equal Employment Opportunity Commission said Ledbetter’s claims could go forward. An Alabama federal jury found that she was discriminated against, and awarded $223,000 in back pay and more than $3 million in punitive damages. The 11th Circuit reversed, holding that the district court should have granted Goodyear’s motion for judgment as a matter of law because the statute required Ledbetter to file her complaint with the EEOC within six months of the alleged illegal employment practice. The justices affirmed, rejecting Ledbetter’s argument that each paycheck issued violated Title VII, triggering a new six-month EEOC filing period. Writing on behalf of the court, Alito said that “a pay-setting decision is a discrete act that occurs at a particular point in time,” and that the statutory period for filing an EEOC claim begins when that discrete act occurs. “A new violation does not occur . . . upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination,” Alito said. Roberts, Scalia, Kennedy and Thomas concurred. Ginsburg, Stevens, Souter and Breyer dissented. ENVIRONMENTAL LAW Environmental Defense v. Duke, 127 S. Ct. 1423 The justices upheld unanimously the Environmental Protection Agency’s view that changes in power plants that may contribute to air pollution can only be undertaken with a permit. In the 1970s, Congress added two air-pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of which covers modified, as well as new, stationary sources of air pollution. Duke Energy Corp. runs 30 coal-fired electricity-generating units at eight plants in North Carolina and South Carolina. In order to extend the life of the units, Duke replaced or redesigned 29 tube assemblies. In 2000, the EPA filed suit in a North Carolina federal court, alleging that Duke had violated the PSD provisions by doing this work without a permit. Duke moved for summary judgment, arguing that it wasn’t undertaking a “major modification” requiring a PSD permit because there was no increase in hourly rates of emissions. The court agreed with Duke. The 4th Circuit affirmed. The justices reversed. Writing on behalf of the court, Souter said that the 4th Circuit’s reading of the PSD regulations in an effort to make them conform to their NSPS counterparts on “modification” amounted to the invalidation of the PSD regulations, which must comport with the Clean Air Act’s limits on judicial review of EPA regulations for validity. The PSD regulations clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” Massachusetts v. EPA, 127 S. Ct. 1438 The justices ruled, 5-4, that the Environmental Protection Agency has statutory authority to regulate the emission of greenhouse gases from new motor vehicles. In 1999, a group of 19 private organizations filed a rule-making petition asking the EPA to regulate “greenhouse gas emissions from new motor vehicles” under Section 202 of the Clean Air Act, which requires the EPA to prescribe standards “applicable to the emission of any air pollutant from any class . . . of new motor vehicles” which may cause or contribute to air pollution. The EPA denied the petition. The D.C. Circuit affirmed. The justices reversed. Writing on behalf of the court, Stevens said that because greenhouse gases fit well within the act’s definition of “air pollutant,” the EPA has statutory authority to regulate emission of such gases from new motor vehicles. The definition � “any air pollution agent . . . including any physical, chemical . . . substance . . . emitted into . . . the ambient air” � embraces all airborne compounds of whatever stripe. Stevens’ opinion was joined by Kennedy, Souter, Ginsburg and Breyer. Roberts, Scalia, Thomas and Alito dissented. National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 The justices held, 5-4, that Section 7(a)(2) of the Endangered Species Act isn’t an additional criterion the Environmental Protection Agency must consider when determining whether to transfer permitting power under the Clean Water Act to state authorities. Under the Clean Water Act, the EPA administers each state’s national pollution discharge elimination system permitting program. Section 402(b) of the act provides that the EPA “shall approve” transfer of permitting authority to a state upon a showing that the state has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act of 1973 requires federal agencies to ensure that any proposed agency action doesn’t jeopardize an endangered species. In 2002, Arizona officials applied for EPA authorization to administer the state’s pollution discharge program. The EPA consulted the Fish and Wildlife Service to determine if transfer of permitting authority would adversely affect any listed species. The FWS said, while there was no direct impact, potential impact should also be taken into account. The EPA said Arizona had met Section 402(b)’s nine criteria and approved the transfer. The 9th Circuit vacated, holding that although Arizona had met Section 402(b)’s criteria, Section 7(a)(2) required the EPA to determine if the transfer would jeopardize listed species. The justices reversed. Writing on behalf of the court, Alito said that while the EPA may exercise some judgment in determining whether a state has shown that it can carry out Section 402(b)’s criteria, “the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in Section 402(b) authorizes the EPA to consider the protection of listed species as an end in itself when evaluating a transfer application.” Alito’s opinion was joined by Roberts, Scalia, Kennedy and Thomas. Stevens, Souter, Ginsburg and Breyer dissented. U.S. v. Atlantic Research, 127 S. Ct. 2331 The justices ruled unanimously that a company potentially liable under the Comprehensive Environmental Response, Compensation and Liability Act for cleaning up areas contaminated by hazardous materials may sue other parties under Section 107(a) of the act to recover some of its cleanup costs. Sections 107(a) and 113(f) of CERCLA allow private parties to recover expenses incurred in cleaning up contaminated sites. Atlantic Research Corp. leased property at the Shumaker Naval Ammunition Depot, a facility operated by the Department of Defense, where it retrofitted rocket motors for the government. Atlantic Research cleaned the contaminated site and sought to recover some of its costs under Section 107(a). An Arkansas federal court dismissed the suit, holding that Section 113(f) provided the exclusive remedy for a potentially responsible party to recover costs. The 8th Circuit reversed. The justices affirmed. Writing on behalf of the court, Thomas said that Section 107(a) authorizes cost-recovery actions by any private party to recover the voluntary cleanup costs incurred by a potentially responsible party in the absence of an enforcement action. GOVERNMENT Rockwell Int’l v. U.S., 127 S. Ct. 1397 The justices ruled, 6-2, that a person bringing a lawsuit to recover misspent federal funds must have direct and independent knowledge of the facts behind the claim in order to be eligible to sue. While employed as an engineer at a nuclear weapons plant run by Rockwell International Corp. under a government contract, James Stone predicted that Rockwell’s system for disposing of toxic pond sludge by creating solid “pondcrete” blocks from out of sludge and cement would not work. However, Rockwell successfully made such blocks and discovered “insolid” ones only after Stone was laid off in 1986. In 1988, the Department of Energy discovered thousands of insolid blocks. In 1989, after he had been laid off, Stone filed a qui tam suit, alleging that Rockwell had violated numerous federal and state environmental laws and that it had knowingly presented false and fraudulent claims to the government in violation of the False Claims Act. Under 31 U.S.C. 3730(b)(1), a private individual may bring a civil action in the government’s name if he or she is “an original source of the information.” A Colorado federal jury found for Stone on the pondcrete allegations, and awarded damages of $1,390,775.80, which the court trebled. The 10th Circuit affirmed. The justices reversed, holding that Stone had failed to show he had “direct and independent knowledge of the information on which the allegations are based.” Stone did not know the pondcrete had failed; he predicted it. And his prediction was flawed, for the pondcrete problem were caused by a foreman’s actions after Stone had left the plant. Scalia’s opinion was joined by Roberts, Kennedy, Souter, Thomas and Alito. Stevens and Ginsburg dissented. Breyer took no part in the decision of the case. United Haulers v. Oneida-Herkimer, 127 S. Ct. 1786 The justices held, 6-3, that local governments don’t violate the U.S. Constitution’s commerce clause when they compel private haulers to use municipal facilities to process garbage. The Oneida-Herkimer Solid Waste Management Authority collects, processes and disposes of solid waste generated in New York’s Oneida and Herkimer counties. The authority collects “tipping fees” to cover its operating and maintenance costs. The counties enacted “flow control” ordinances requiring all solid waste to be delivered to the authority’s processing sites. Private haulers had to obtain permits from the authority to collect waste in the counties. In 1995, United Haulers Association Inc., a trade association made up of solid-waste management companies, sued the counties and the authority in a New York federal court, alleging that the flow-control laws violate the commerce clause by discriminating against interstate commerce. The court ruled for the haulers. The 2d Circuit reversed. The justices affirmed. Writing on behalf of the court, Roberts said that laws favoring local government may be directed toward any number of legitimate goals unrelated to protectionism. Here, the laws enable the counties to pursue particular policies with respect to waste handling and treatment, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate. Roberts said, “Waste disposal is . . . traditionally a function of local government . . . .Nothing in the commerce clause vests the responsibility for such a policy judgment with the federal judiciary.” Scalia, Souter, Thomas, Ginsburg and Breyer concurred. Alito, Stevens and Kennedy dissented. IMMIGRATION LAW Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 The justices ruled unanimously that an alien living in the United States who is convicted of a crime for which a conviction could be issued for “aiding and abetting” may be deported for having committed a theft offense. Luis Duenas-Alvarez, a permanent resident alien, was convicted of violating Calif. Veh. Code � 10851(a). The government sought to remove Duenas-Alvarez from the United States as an alien convicted of “a theft offense . . . for which the term of imprisonment [is] at least one year.” The government cited the U.S. Supreme Court’s 1990 ruling, Taylor v. U.S., 495 U.S. 575, which held that for sentence-enhancing purposes, a court seeking to determine whether a particular prior conviction was for generic theft should look at the state statute defining the crime of conviction, not to the facts of the particular prior case. But if state law defines theft as including crimes falling outside generic theft, the sentencing court should determine whether the jury had been required to find all the elements of the generic crime. A federal immigration judge and the Bureau of Immigration Appeals found Duenas-Alvarez removable. The 9th Circuit reversed, holding that the definition of “theft” in Section 10851(a) is more sweeping than generic “theft.” Generic theft involves the taking or control of others’ property. However, one may “aid” or “abet” a theft without taking or controlling property. Because aiding and abetting is not a generically defined “theft” crime, it falls outside the scope of the term “theft” in the immigration statute. The justices reversed, holding that “theft offense” under federal law includes the crime of “aiding and abetting” a theft offense. Writing on behalf of the court, Breyer said that since state and federal criminal law treats principals and aiders and abettors alike, “the generic sense in which” the term “theft” is used in the criminal codes of most states covers “aiders and abettors.” Lopez v. Gonzales, 127 S. Ct. 625 The justices ruled, 8-1, that an immigrant convicted of conduct that is a felony under state law but only a misdemeanor under the federal Controlled Substance Act isn’t subject to deportation under the Immigration and Naturalization Act. In 1997, Jose Antonio Lopez, a legal permanent resident, pleaded guilty in South Dakota to aiding and abetting another person’s possession of cocaine. He was sentenced to five years’ imprisonment. After his release, the Immigration and Naturalization Service sought to remove him on the grounds that his conviction was a controlled substance violation and an aggravated felony. Lopez contested the aggravated felony charge, arguing his offense wasn’t a felony under the Controlled Substance Act. The 8th Circuit held that any drug conviction that is a felony under state or federal law is an aggravated felony under the Immigration and Naturalization Act. The justices reversed. Writing on behalf of the court, Souter said that a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Souter’s opinion was joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, Breyer and Alito. Thomas dissented. INTELLECTUAL PROPERTY KSR Int’l Co. v. Teleflex, 127 S. Ct. 1727 The justices ruled unanimously that the Federal Circuit’s so-called teaching, suggestion or motivation test for granting patent protection is too rigid to keep pace with fast-developing technologies. In 1998, KSR International Co., a Canadian auto parts maker, developed an adjustable mechanical pedal for Ford Motor Co. and registered the patent. In 2000, KSR was chosen by General Motors Corp. to supply adjustable pedal systems for light trucks that used engines with computer-controlled throttles. To make the pedal compatible with the trucks, KSR added a modular sensor to its design. Teleflex had a patent for a pedal assembly with an electronic pedal position sensor attached a fixed pivot point. Teleflex sued KSR for patent infringement, charging that KSR had added an electronic sensor to its previously designed pedal. KSR countered that the claim was invalid under the Patent Act, because its subject matter was obvious. A Michigan federal court said the patent was invalid. The Federal Circuit reversed, holding that the district court had not applied the “teaching, suggestion or motivation” test strictly enough. The justices reversed. Writing on behalf of the court, Kennedy said that the Federal Circuit had addressed the obviousness question in a narrow, rigid manner. KSR had provided convincing evidence that mounting an available sensor on a fixed pivot point of the pedal was a design step well within the grasp of a person of ordinary skill in the relevant art and that the benefit of doing so would be obvious. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility. MedImmune Inc. v. Genentech, 127 S. Ct. 764 The justices ruled, 8-1, that patent licensees no longer have to breach the license in order to have standing to challenge the patent’s valildity. MedImmune, a biotech company, makes and markets Synagis, a drug used to prevent a respiratory tract disease in young children. In 1997, MedImmune entered into a patent license agreement with Genentech. MedImmune agreed to pay royalties on the sale of patented licensed products. Subsequently, Genentech claimed that because Synagis was covered by one of the patents it was owed royalties under the agreement. MedImmune believed that no royalties were due because the patent was unenforceable and because Synagis did not infringe the patent’s claims. However, fearing possible treble damages and being enjoined from selling Synagis, MedImmune agreed to pay the royalties but filed for declaratory relief. A California federal court dismissed for lack of subject-matter jurisdiction because MedImmune was paying the royalties. The Federal Circuit affirmed. The justices reversed. Writing for the court, Scalia said that, even though MedImmune had agreed to pay the royalties, the record shows the company had preserved its claim that it owed no royalties because of patent unenforceability and noninfringement. “Where threatened government action is concerned, a plaintiff is not required to expose himself to liability before bringing suit to challenge the basis for the threat,” Scalia wrote. His opinion was joined by Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer and Alito. Thomas dissented. Microsoft Corp. v. AT&T, 127 S. Ct. 1746 The justices ruled, 7-1, that for patent infringement purposes, it is the copy of computer software, not the software in the abstract, that is deemed a “component” for “combination” abroad. AT&T holds a patent on a computer used to encode and compress recorded speech digitally. Microsoft’s Windows operating system incorporates a software code that enables a computer to process speech in the manner claimed by the patent. Microsoft sells Windows to foreign manufacturers that install the software onto the computers they sell. Microsoft sends each manufacturer a master version of Windows, either on a disk or via encrypted electronic transmission, which the manufacturer uses to generate copies. Those copies are installed on the foreign manufacturers’ computers. AT&T filed an infringement suit against Microsoft claiming that, by sending Windows to foreign manufacturers, the software giant had “supplie[d] . . . from the United States,” for “combination” abroad, “components” of AT&T’s patented speech-processing computer, and was, accordingly, liable under Section 271(f) of the Patent Act. A New York federal court held Microsoft liable under Section 271(f), and the Federal Circuit affirmed. The justices reversed. Writing on behalf of the court, Ginsburg said that it is the copy of Windows, not Windows in the abstract, that qualifies as a “component” under Section 271(f). Because Microsoft does not export from the United States copies of Windows for installing on foreign-made computers, it is not supplying the “components” of those computers, and is therefore not liable under Section 271(f). Abstract software code is an idea without physical embodiment, and does not match Section 271(f)’s categorization: “components” amenable to “combination.” Ginsburg’s opinion was joined by Scalia, Kennedy, Souter, Thomas, Breyer and Alito. Stevens dissented. INTERNATIONAL LAW Permanent Miss’n India to U.N. v. New York City, 127 S. Ct. 2352 The justices ruled, 7-2, that foreign governments are not immune from suit to force them to pay local property taxes on residences for their diplomats at the United Nations. New York City is trying to collect property taxes from nations that house their employees in buildings in which they operate diplomatic offices. The countries have tax exemptions for the diplomatic mission section of the properties, but the city says they must pay taxes for the space that houses employees. In 2003, the city sought declaratory judgments to establish the validity of its tax liens. The Permanent Mission of India argued that it was immune from suit under the Foreign Sovereign Immunities Act. A New York federal court said that under, FSIA’s “immovable property” exception, a foreign state isn’t immune from suits involving “rights in immovable property.” The 2d Circuit affirmed. The justices affirmed. Writing on behalf of the court, Thomas said, “Because a lien on real property runs with the land and is enforceable against subsequent purchasers, a tax lien inhibits a quintessential property ownership right � the right to convey. It is thus plain that a suit to establish a tax lien’s validity implicates ‘rights in immovable property.’ “ LABOR LAW Davenport v. Washington Ed. Ass’n, 127 S. Ct. 2372 The justices ruled unanimously that it is not a violation of the First Amendment for a state to bar a government employees’ labor union from using nonunion workers’ dues for political causes without the workers’ consent. A few thousand teachers and education employees represented by the Washington Education Association chose not to join the union. A Washington state law compels workers to pay the equivalent of union dues, a portion of which the union uses for political activities. The Washington Supreme Court struck down the provision, saying the union’s offer to reduce fees for any nonmember who registers an objection to the political spending was sufficient. The justices reversed. Writing on behalf of the court, Scalia said the law does not violate the union’s First Amendment rights. The issue before the court was whether employees must affirmatively consent to having some of their money used in election campaigns. The state has given the union an extraordinary benefit, allowing it to collect money from workers who are not union members. “The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is . . . counterintuitive.” Long Island Care v. Coke, 127 S. Ct. 2339 The justices ruled unanimously that home health care workers who are employed by outside agencies are not entitled to minimum wages and overtime pay under federal law. The Fair Labor Standards Amendments of 1974 exempted from the minimum wage and maximum hours rules of the Fair Labor Standards Act of 1938 (FLSA) those “employed in domestic service employment to provide companionship services.” A Department of Labor (DOL) regulation exempted also “companionship” workers “employed by an . . . agency other than the family or household using their services.” Evelyn Coke, a 73-year-old “companionship services” provider, sued Long Island Care, seeking minimum and overtime wages allegedly owed her under the FLSA. A New York federal court dismissed her suit, finding the DOL’s third-party regulation valid and controlling. The 2d Circuit reversed. The justices reversed. Writing on behalf of the court, Breyer said that the FLSA explicitly leaves gaps as to the scope and definition of its “domestic service employment” and “companionship services” terms, and empowers the DOL to fill these gaps through regulations. REAL PROPERTY Wilkie v. Robbins, 127 S. Ct. 2588 The justices ruled unanimously that government officials acting in their official capacity cannot be personally held liable for damages under the Racketeer Influenced and Corrupt Organizations Act (RICO) for trying to obtain property for the government. Frank Robbins filed a suit against several Bureau of Land Management employees, seeking to hold them liable under RICO for alleged extortion in trying to gain a reciprocal right-of-way through his private property. A Wyoming federal court denied a motion to dismiss the RICO claim based on qualified immunity. The 10th Circuit affirmed. The justices reversed. Writing on behalf of the court, Souter said RICO does not apply when the “National Government is the intended beneficiary of allegedly extortionate acts . . . .While public officials were not immune from extortion charges at common law, that crime focused on the harm of public corruption, by selling public favors for private gain, not on the harm caused by overzealous efforts to obtain property on the Government’s behalf.” SCHOOLS AND EDUCATION TSSAA v. Brentwood, 127 S. Ct. 2489 The justices decided unanimously that a state athletic regulatory body’s enforcement of a no-recruiting rule on athletes doesn’t violate the First Amendment. The Tennessee Secondary School Athletic Association (TSSAA) sanctioned Brentwood Academy because its football coach sent eighth-grade boys a letter that violated its rule prohibiting use of “undue influence” in recruiting middle school students for athletic programs. Brentwood filed suit in a Tennessee federal court under 42 U.S.C. 1983, claiming violations of the First and 14th amendments as well as the due process clause of the U.S. Constitution. The court granted Brentwood relief. The 6th Circuit affirmed. The justices reversed. Writing on behalf of the court, Stevens said an athletic body’s interest in enforcing its rules may warrant curtailing the speech of its voluntary participants. The association can impose only those conditions that are necessary to managing efficient and effective high school athletic competition. Winkelman v. Parma City, 127 S. Ct. 1994 The justices ruled unanimously that parents of children with special needs have independent, enforceable rights under the Individuals With Disabilities in Education Act and can therefore represent themselves in IDEA litigation. Jacob Winkelman has autism spectrum disorder. After the local school district proposed placing him in a public elementary school, his parents filed a complaint alleging that the district had failed to provide Jacob with a free appropriate public education, as required by IDEA. An Ohio federal court ruled that the district had provided a free appropriate public education. The 6th Circuit dismissed the Winkelmans’ appeal, saying that Jacob had to be represented by counsel, because the right to a free appropriate public education “belongs to the child alone.” Therefore, “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right. The justices reversed. Writing for the court, Kennedy said parents have legal rights under IDEA. “They are, as a result, entitled to prosecute IDEA claims on their own behalf,” he said. “It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child.” Zuni v. Department of Education, 127 S. Ct. 1534 The justices ruled, 5-4, that the U.S. Department of Education is permitted by statute to refer to the amount of per-student expenditure in a school district, when determining whether a state “equalizes expenditures” among public school districts. New Mexico’s Zuni district argued that the federal government failed to follow a funding formula that provides aid for districts in which there is a large federal presence, such as a military base or an Indian reservation, that makes it difficult to raise local tax dollars. The state of New Mexico is allowed to take the federal money and distribute it through an equalization formula. Zuni sued the state in an attempt to keep the federal money. The Gallup district later joined the suit. New Mexico and 54 of its 89 school districts opposed the lawsuit, contending that the adjustment the districts sought would disrupt funding equity statewide. An administrative law judge ruled in the state’s favor. The 10th Circuit upheld the funding formula. The justices affirmed. Writing for the court, Breyer said the department’s “calculation formula is a reasonable method that carries out Congress’ likely intent in enacting the statutory provision before us.” Breyer’s opinion was joined by Stevens, Kennedy, Ginsburg and Alito. Roberts, Scalia, Souter and Thomas dissented. TAXATION EC Term of Years Trust v. IRS, 127 S. Ct. 1763 The justices ruled unanimously that a trust seeking to recover money levied by the Internal Revenue Service can’t challenge the levy by bringing an action for a tax refund under 28 U.S.C. 1346(a)(1) after missing the nine-month deadline for a wrongful levy action under 28 U.S.C. 7426(a)(1). In 1991, a Texas couple, Elmer and Dorothy Cullers, set up EC Terms of Years Trust. In 1999, the Internal Revenue Service filed a tax lien against the trust over unwarranted income tax deductions. The trust deposited funds in a bank account, against which the IRS issued a notice of levy. The bank responded with a check for more than $3 million. Almost a year later, the trust brought a civil action in a Texas federal court under 26 U.S.C. 7426(a)(1), claiming wrongful levies. The court dismissed it because the complaint was filed after the nine-month limitation period had expired. The court also noted that tax refund claims under 28 U.S.C. 1346(a)(1) were not open to the trust because Section 7426 affords the exclusive remedy for an innocent third party whose property is confiscated by the IRS to satisfy another person’s tax liability. The 5th Circuit affirmed. The justices affirmed. Writing for the court, Souter said Section 7426(a)(1) provides the exclusive remedy for third-party wrongful levy claims. “[A] precisely drawn, detailed statute pre-empts more general remedies.” If third parties could avail themselves of Section 1346(a)(1)’s general tax refund jurisdiction, they could evade Section 7426(a)(1)’s much shorter limitations period. Hinck v. U.S., 127 S. Ct. 2011 The justices held unanimously that only the U.S. Tax Court may review refusals by the Internal Revenue Service (IRS) to reduce interest payments on people who underpay their taxes. In 1986, John Hinck was a limited partner in Agri-Cal Venture Associates. Along with his wife, Pamela, Hinck filed a joint return for 1986 reporting his share of losses from the partnership. The IRS proposed adjustments to deductions the partnership had claimed. In 1990, the IRS issued a final notice disallowing tens of millions of dollars of deductions. While the partnership sought administrative review of this decision, the Hincks made an advance remittance of $93,890. The IRS then imposed additional liability: $16,409 in tax and $21,669 in interest. The IRS applied the Hincks’ advance remittance to this amount and refunded them the balance of $55,812. The Hincks filed a claim contending that, because of IRS errors and delays, the interest assessed against them should be abated under 26 U.S.C. 6404(e)(1). The U.S. Court of Federal Claims granted the government’s motion to dismiss, and the Federal Circuit affirmed, holding that, according to Section 6404(h), the Tax Court has exclusive “jurisdiction over any action brought by a taxpayer . . . to determine whether the Secretary’s failure to abate . . . was an abuse of discretion.” The justices affirmed, holding that the terms of Section 6404(h) control all requests for review of Section 6404(e)(1) decisions, including the forum for adjudication. In enacting Section 6404(h), Roberts wrote for the court, Congress set out a carefully circumscribed, time-limited, plaintiff-specific provision, which also precisely defined the appropriate forum. Taxpayers could evade these limitations by bringing interest-abatement claims as tax refund actions. Limtiaco v. Camacho, 127 S. Ct. 1413 The justices decided unanimously that the U.S. Territory of Guam must calculate its borrowing limit based upon the assessed value of property in the territory, not on the appraised value. In 2003, Guam lacked sufficient revenues to pay its obligations. The Guam Legislature authorized the governor to issue bonds worth approximately $400 million. The governor signed the new legislation. However, the attorney general refused to approve the bond contracts, arguing that issuance of the bonds would raise the territory’s debt above the level authorized by Guam’s Organic Act, 48 U.S.C. 1423a, which prohibits debt in excess of 10% of the “aggregate tax valuation of the property in Guam.” The attorney general had calculated the debt limitation as 10% of the assessed valuation of property in Guam. But the governor calculated the debt limitation as 10% of the appraised valuation. Because Guam assesses property at 35% of its appraised value, Guam Code Ann., tit. 11, � 24102(f), the attorney general’s interpretation resulted in a much lower debt limit. Guam’s high court agreed with the governor and held that Section 1423a sets the debt limitation at 10% of the appraised valuation. The justices reversed. Writing on behalf of the court, Thomas said that the term “tax valuation” most naturally means the value to which the tax rate is applied. It therefore means “assessed valuation,” a term that is consistently defined as a valuation of property for tax purposes. Appraised value is simply market value, which may or may not relate to taxation. WORKERS’ COMPENSATION Norfolk Southern v. Sorrell, 127 S. Ct. 799 The justices ruled unanimously that under the Federal Employers’ Liability Act (FELA) the same legal standard applies to a railroad’s negligence in a worker injury case as to contributory negligence by a worker. Timothy Sorrell, a Norfolk employee, was driving a truck. Another Norfolk truck approached, and Sorrell’s truck was forced off the road into a ditch. He sustained neck and back injuries, and filed suit in Missouri state court under FELA, alleging his injuries were caused by Norfolk’s negligence. Norfolk claimed they were caused by Sorrell’s negligence. Missouri applies different standards of causation to railroad and employee contributory negligence under FELA. Juries are instructed to find contributory negligence by an employee if his negligence “directly contributed to cause” the injury. But they are instructed to find railroad negligence if the railroad’s negligence contributed “in whole or in part” to the injury. The jury awarded Sorrell $1.5 million. An intermediate Missouri appellate court affirmed. The justices reversed. Writing on behalf of the court, Roberts said that absent express language to the contrary, the elements of a FELA claim are determined by reference to common law. “The prevailing common-law view at the time FELA was enacted was that the causation standards for negligence and contributory negligence were the same, and FELA did not expressly depart from this approach.”

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