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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
In 2002, New York joined the growing ranks of states requiring employers that provide health insurance to offer prescription contraceptives as part of their plans. As originally introduced, the Women’s Health and Wellness Act contained a broad exception for any employer connected to a religious organization. After much debate, however, the version of the law that eventually passed contained a much narrower exception — excusing only employers that, among other requirements, primarily employed and served people of the same religion. It didn’t take long for the law to end up in court. Believing the use of contraceptives to be sinful, a group of faith-based social service organizations that fell outside the exemption sought to block enforcement of the law in late 2002, contending that it violates both the free exercise and free speech clauses of the First Amendment by requiring them to promote values in conflict with their religious beliefs. Nearly five years later, the dispute has reached the Supreme Court, with the justices slated to decide whether to review the case — Charities of the Diocese of Albany v. Dinallo, 06-1550 — at their private conference on Sept. 24. Each of the three New York state courts that heard the case voted to uphold the law. In unanimously dismissing the plaintiffs’ free exercise claim, the New York Court of Appeals — the state’s highest court — relied on the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, in which the Court agreed that two Native Americans who had been fired from a private drug rehabilitation center for using peyote during a religious ceremony could be denied unemployment insurance. Writing for a five-justice majority in Smith, Justice Antonin Scalia reasoned that the First Amendment does not forbid “neutral law[s] of general applicability” that only incidentally punish religious practices or beliefs. Applying Smith to the New York statute, the New York appeals court concluded that “religious beliefs were not the �target’ of the WHWA, and it was plainly not that law’s �object’ to interfere with plaintiffs’ or anyone’s exercise of religion.” The plaintiffs, consisting of eight Roman Catholic and two Baptist organizations, have now asked the Court to review the case. Their petition for certiorari — filed by Kevin Baine, a First Amendment specialist at Williams & Connolly in Washington — argues the New York law forces them to choose between competing religious doctrines: one, that contraception is sinful, and two, that employers must offer workers just wages and benefits, including access to prescription medication. (The petition states the plaintiffs are currently providing contraceptive drugs under protest pending the outcome of litigation.) Moreover, the petition argues, the law infringes the groups’ free speech rights by interfering with religious messages they seek to convey. As Baine puts it, “a religious institution cannot communicate an effective message that conduct is sinful at the same time that it pays for that conduct to occur.” And looking forward, he argues that if states can require faith-based services to religious groups to pay for contraceptives in employee health plans, it can also force them to pay for abortions. Opposing certiorari, the state — represented by Solicitor General Barbara Underwood — counters that the act of providing health insurance amounts to conduct, not speech. And while the First Amendment may protect conduct that is “inherently expressive,” one cannot draw any conclusions about an employer’s view of contraception by its mere inclusion in a group health plan because birth control can be prescribed for other medical reasons. The state also argues that both employees and the public can distinguish between conduct the plaintiffs themselves endorse and insurance coverage the law requires them to provide. Moreover, if the petitioners’ claim is upheld, employers could object to any treatment employees undergo in connection with work health plans — such as vaccinations, blood transfusions, or stem-cell treatments. A group of seven religious organizations — represented by Paul Zidlicky and Carter Phillips of Sidley Austin’s Washington office — filed an amicus brief urging the Court to review the case. They argue that the New York court took a misguided approach in determining whether a law is neutral and generally applicable. According to the amici, laws that permit individualized exceptions are, by definition, not generally applicable. The amici cite as a counterexample a 1999 U.S. Court of Appeals for the 3rd Circuit decision, Fraternal Order of Police v. City of Newark, that struck down a police department policy which permitted officers to grow beards for medical but not religious reasons. In that case, the 3rd Circuit reasoned that when “individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of �religious hardship’ without compelling reason.” The author of the 3rd Circuit decision was Samuel Alito Jr., then a judge and now a justice on the high court. The Supreme Court could announce as early as Sept. 25 whether it will hear the New York groups’ case. — Ben Winograd
Other cases up for review include the following: • 06-937, Quanta Computer v. LG Electronics (Federal Circuit) Whether a patentee’s federal patent rights are exhausted by a licensee’s authorized sale of an essential component that has no reasonable use other than in practicing the patented invention, when the patentee has purported to retain in its licensing agreement the right to pursue patent infringement claims against those who purchase the component from the licensee and use it for its only reasonable use. • 06-1082, Virginia v. Moore (Supreme Court of Virginia) Whether the Fourth Amendment requires the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law. • 06-1139, Rutherford v. Cleveland (6th Circuit) Whether the continuation of a consent decree in hiring minority police officers violates the 14th Amendment. • 06-1171, Koutnik v. Brown (7th Circuit) Whether censoring a prisoner’s outgoing mail that contains an image of a swastika violates the First Amendment. • 06-1181, Dada v. Gonzales (5th Circuit) Whether an application for adjustment of immigration status tolls a previously entered agreement for voluntary departure. • 06-1248, Coliseum Square Association v. Jackson (5th Circuit) Whether a proposed federal action must be likely or certain to affect the quality of the surrounding environment before an agency must prepare an environment impact statement. • 06-1251, Golphin v. Florida (Supreme Court of Florida) Whether a pedestrian is seized within the meaning of the Fourth Amendment when a police officer maintains possession of his or her identification in order to conduct a warrants check. • 06-1262, Baker v. St. Jude Medical S.C. (Court of Appeals of Texas, 1st District) Whether the express pre-emption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. �360k(a), pre-empts state law liability suits. • 06-1264, Gonzales v. Gao (2nd Circuit) Whether women forced into arranged marriages may qualify for asylum as members of a “particular social group.” • 06-1282, Cranford v. United States (11th Circuit) Whether the discretionary function exception to the Suits in Admiralty Act’s waiver of sovereign immunity bars the petitioners’ tort action against the United States. • 06-1289, Lewis v. United States (Federal Circuit) Whether the failure to follow procedures outlined in the Defense Officer Personnel Management Act results in automatic appointment of the affected officer to the next higher rank. • 06-1321, Gomez-Perez v. Potter (1st Circuit) Whether the federal sector provision of the Age Discrimination in Employment Act, 29 U.S.C. �633a, prohibits retaliation against employees who complain of age discrimination. • 06-1327, Utah v. Von Ferguson (Supreme Court of Utah) Whether an underlying conviction is valid for purposes of enhancing a subsequent criminal charge if an uncounseled misdemeanant is fined and sentenced to suspended jail time in violation of Alabama v. Shelton, 535 U.S. 654 (2002). • 06-1328, Tyco Healthcare Group v. Medrad (Federal Circuit) Whether the Federal Circuit erred by effectively abrogating the express statutory limitations on reissuing defective patents set forth in 35 U.S.C. �251 and thereby permitting such patents to be reissued as a matter of course. • 06-1332, Gill v. United States (1st Circuit) Whether a claim for emotional distress without physical injury can be brought under the Federal Employees’ Compensation Act, 5 U.S.C. �8101, without first presenting the claim to the secretary of labor. • 06-1346, Ali v. Achim (7th Circuit) Whether an offense need not be an aggravated felony to be classified as a “particularly serious crime” that bars eligibility for withholding of removal. • 06-1368, Harvey v. Florida (Supreme Court of Florida) Whether trial counsel violates Strickland v. Washington by failing to remove a juror who says during during voir dire that she cannot be fair and impartial, as opposed to making a strategic decision to accept a biased juror. • 06-1381, Mejia-Huerta v. United States (5th Circuit) Whether Federal Rule of Criminal Procedure 32(h) requires a district court to provide notice of intent to impose a sentence either above or below the sentence recommended by the Sentencing Guidelines, when the grounds for the non-Guidelines sentence are not identified in the pre-sentence report or the parties’ pre-hearing submissions. • 06-1431, CBOCS West v. Humphries (7th Circuit) Whether a race retaliation claim is cognizable under 42 U.S.C. �1981. • 06-1434, Medtronic Sofamor Danek v. DePuy Spine (Federal Circuit) Whether the Federal Circuit properly balanced the public notice function of patent claims (the goal of the Supreme Court’s “all-elements rule”) with the desire to protect patentees from unscrupulous copyists (the goal of the doctrine of equivalents). • 06-1438, Hudson v. AEP Texas North Co. (5th Circuit) Whether states are pre-empted from interpreting the meaning of Federal Energy Regulatory Commission tariffs when disputes arise in retail rate proceedings. • 06-1454, -1457, -1462, -1468, Sempra Generation v Public Utilities Commission of California; Morgan Stanley Capital v. Public Utility District No. 1; Calpine Energy Services v. Public Utility District No. 1; Dynergy Power Marketing v. Public Utility Communication of California (9th Circuit) Whether, under United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and FPC v. Sierra Pacific Power Co., 350 U.S. 348 (1956), the Federal Energy Regulatory Commission may take the 2000-2001 western energy crisis into account in determining the standard to be applied in its review of contracts for the sale of electric power. • 06-1456, Cuellar v. United States (5th Circuit) Whether the principal federal money laundering statute, 18 U.S.C. �1956, requires a design to create the appearance of legitimate wealth. • 06-1459, Boggan v. Mississippi Conference of the United Methodist Church (5th Circuit) Whether the alleged ministerial exception to Title VII of the Civil Rights Act of 1964 is valid under the Religious Freedom Restoration Act. • 06-1466, Barnes v. United States (Federal Circuit) Whether the court of appeals correctly concluded that the petitioner received timely notice of his promotion delay as required by the Defense Officer Personnel Management Act, and, if not, whether the failure to follow the act’s procedures results in automatic appointment of the affected officer to the next higher rank. • 06-1481, McNamara v. City of Rittman (6th Circuit) Whether a Fifth Amendment takings claimant must first seek compensation in state court under state takings law, including state common law tort remedies, as a necessary step before bringing a federal takings claim in federal court. • 06-1497, Vision Church v. Village of Long Grove (7th Circuit) Whether, under the Religious Land Use and Institutionalized Persons Act, a land use regulation must make religious uses or practices “effectively impracticable” to constitute a “substantial burden” on religious exercise, whether a land use regulation that treats religious uses differently from nonreligious uses violates the act’s “equal terms” requirement, and whether an equal protection challenge to a land use regulation must be analyzed under “rational basis” scrutiny. • 06-1498, Warner-Lambert v. Kent (2nd Circuit) Whether federal law pre-empts state law to the extent it requires fact-finders to determine whether the defendant committed fraud on a federal agency that affected the agency’s product approval, where the agency has not found such fraud. • 06-1507, Philadelphia Housing Authority v. Henderson (3rd Circuit) Whether the court of appeals erred in maintaining a 22-year-old consent decree that the petitioners allege was superseded by subsequent regulations of the Department of Housing and Urban Development. • 06-1543, Sasouvong v. Washington (Court of Appeals of Washington, 1st District) Whether enhancing a sentence on the basis of a prior juvenile conviction violates the Sixth and 14th Amendments. • 06-1545, R.J. Reynolds Tobacco v. Engle (Supreme Court of Florida) Whether the 1969 Federal Cigarette Labeling and Advertising Act, as interpreted by Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992), pre-empts common law claims of fraudulent omission. • 06-1575, City of Bridgeport v. Russo (2nd Circuit) Whether the Fourth Amendment requires law enforcement officers to investigate items of evidence identified by a suspect after an arrest. • 06-1589, Lanard Toys v. General Motors (6th Circuit) Whether the existence of alternative product designs is relevant to determining whether a product design feature is “functional” and therefore ineligible for trade dress protection. • 06-1595, Crawford v. Nashville (6th Circuit) Whether a witness’s providing information during an employer’s internal sexual harassment investigation amounts to protected activity under Section 704(a) of Title VII. • 06-1606, Avilla v. Thompson (Court of Appeal of California, 6th District) Whether a legal aid corporation is a “state actor” for purposes of 42 U.S.C. �1983 when it deals with a fee dispute with an appointed lawyer in performance of a traditionally exclusive state function in dealing with such matters. • 06-1608, Glanton v. Advancepcs (9th Circuit) Whether the congressional grant of statutory standing in Sections 502(a)(2)-(3) of the Employee Retirement Income Security Act violates Article III of the Constitution. • 06-1616, Chester v. Texas (Court of Criminal Appeals of Texas) Whether the Texas Court of Criminal Appeals’ standard for determining mental retardation of a capital defendant violates the U.S. Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). • 06-1617, Gilles v. Blanchard (7th Circuit) Whether Vincennes University’s solicitation policy, as applied to a traveling preacher who frequently visits college campuses, violates the free speech clause of the First Amendment. • 06-1633, Faith Center Church Evangelistic Ministries v. Glover (9th Circuit) Whether a county policy stating that public library meeting rooms shall not be used for religious services violates the free speech clause of the First Amendment. • 06-1644, DeLong v. Best Buy (11th Circuit) Whether and under what circumstances an employer can be held liable for retaliation in violation of Title VII based upon the bias of subordinate company officials, where the officials did not make the adverse employment decision but allegedly caused that decision through submission of false evidence. • 06-1646, United States v. Rodriquez (9th Circuit) Whether a state drug-trafficking offense qualifies as a predicate offense under the Armed Career Criminal Act. • 06-1648, NDS Group v. Sogecable (9th Circuit) Whether, under the Racketeer Influenced and Corrupt Organizations Act, an “enterprise” may consist solely of a corporate defendant (the “person”) and its subsidiaries or agents, whether an “enterprise” comprising a “group of individuals associated in fact” must have a structure separate from the “pattern of racketeering activity,” and whether the statute of limitations does not begin to run until an injured person discovers the identity of the defendant. • 06-1672, Gros Ventre Tribe v. United States (9th Circuit) Whether the waiver of sovereign immunity in Section 702 of the Administrative Procedure Act is limited by the final agency action requirement of Section 704 or the judicial review provisions of Section 706, and whether Court precedent addressing tribal claims for money damages under the Tucker Act limit tribal claims for equitable relief under treaties and the common law. • 06-1681, Hynix Semiconductor v. Rambus (Court of Appeal of California, 1st District) Whether, under the Federal Arbitration Act, a generic choice-of-law clause in a contract providing for arbitration incorporates state arbitration rules that limit or prevent arbitration. • 06-1691, Transclean Corp. v. Jiffy Lube (Federal Circuit) Whether the doctrine of judicial estoppel precludes a party from taking alternative and allegedly inconsistent positions in a proceeding where (a) the positions are on a question of law and (b) the party achieved no judicial success from its asserted earlier position, and whether a court of appeals has jurisdiction or discretionary authority to reverse a judgment to the benefit of a party that filed no appeal or cross-appeal. • 06-1694, Brewer v. Board of Trustees of the University of Illinois (7th Circuit) Whether an employer can be held liable under Title VII when the discriminatory animus of an intermediate supervisor was a factor in the employer’s ultimate decision to impose an adverse employment action, even when there is no evidence that the formal decision-maker personally harbored bias against the affected employee. • 06-1699, Missouri v. March (Supreme Court of Missouri) Whether a chemical laboratory report, which was admitted at trial as a “business record,” is “testimonial” and therefore subject to the demands of the confrontation clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004). • 06-1700, Missouri v. McFadden (Supreme Court of Missouri) Whether, in reviewing a Batson challenge, an appellate court may conclude a hairstyle is common among members of a particular race, and that a peremptory strike based on a person’s “crazy red hair” is thus indicative of racial discrimination. • 06-1701, Southwire v. Janowick (6th Circuit) Whether, when an ERISA plan trustee receives demutualization proceeds, the proceeds are distributed based upon the benefit plan and other related documents or instead are payable to the plan participants in excess of their accrued benefit. • 06-1704, Carlisle v. Carnival (Supreme Court of Florida) Whether a cruise line which provides an onboard physician for its passengers as part of the cruise experience is vicariously liable for the medical negligence of that physician, committed on the ship’s passengers during the cruise. • 06-1709, Eichenlaub v. Township of Indiana (3rd Circuit) Whether all substantive due process claims involving executive action are subject to the “shocks the conscience” standard, or whether only certain types of executive action are subject to that standard. • 06-1712, Macy v. Hopkins County Board of Education (6th Circuit) Whether, when an employer seeks summary judgment on a claim brought under the Americans with Disabilities Act or the Rehabilitation Act, courts should apply the “motivating factor” test, as opposed to the “sole factor” test, in determining if the discharge of employment was due in part to an employee’s actionable disability. • 06-1714, Bell v. California (Supreme Court of California) Whether attempts to establish a prima facie case of group bias under Batson v. Kentucky, 476 U.S. 79 (1986) require a reviewing court to engage in comparative juror analysis. • 06-1716, Rockstead v. City of Crystal Lake (7th Circuit) Whether the Court should reconsider the state litigation requirement of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), whereby a Fifth Amendment takings claim is not ripe in federal court until the landowner first seeks and is denied compensation in state court. • 06-1722, ITC Limited v. Punchgini (2nd Circuit) Whether a famous foreign mark without rights through use in the United States, which is known to the relevant consumer group, is protected as a well-known mark under the Lanham Act. • 07-7, Arave v. Lankford (9th Circuit) Whether the 9th Circuit established an improperly low standard for defendants seeking to establish claims of ineffective assistance of counsel based upon counsel’s submission of jury instructions. • 07-16, New York v. Havrish (Court of Appeals of New York) Whether the Fifth Amendment right against self-incrimination bars prosecution for illegal possession of a handgun surrendered to police following an unrelated arrest. • 07-33, Ozmint v. Ard (Supreme Court of South Carolina) Whether trial counsel in a capital case was ineffective for failing to interview and later cross-examine the state’s gunshot residue expert. • 07-37, New Mexico v. Romero (Supreme Court of New Mexico) Whether defendants who kill a witness who had previously made testimonial statements against them forfeit their constitutional rights of confrontation only if they killed the witness with the specific intent to prevent him or her from testifying at trial. • 07-59, Barrow v. Greenville Independent School District (5th Circuit) Whether a public school teacher passed over for a promotion because her children attended a private religious school can sue the district superintendent as a “policymaker” within the meaning of Monell v. Dept. of Social Services of New York, 436 U.S. 658, 694 (1978). • 07-69, Catawba Indian Tribe v. South Carolina (Supreme Court of South Carolina) Whether the Catawba Indian Tribe of South Carolina Land Claims Settlement Act, 25 U.S.C. �941, pre-empts a state ban on video poker. • 07-102, Randolph v. Raygoza (7th Circuit) Whether a federal habeas court may disregard a state trial court’s factual finding that witnesses lacked credibility, made after evaluating their in-person testimony, because that finding was made implicitly rather than explicitly. • 07-121, Matlaw v. Hug (7th Circuit) Whether an attorney may appeal on her own behalf a district court ruling that explicitly finds misconduct and harms her professional reputation, even though no monetary sanctions were imposed, and if so, under what circumstances.

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